Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”): (a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto); (b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing; (c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion: (i) an executed original of this Amendment; (ii) an amendment to the Fee Letter; (iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty; (iv) each of the items required to have been delivered pursuant to Section 3(a) above; (v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve; (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing; (vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby; (viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and (ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”). (d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero; (e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders (i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby; (f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent; (g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and (h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 2 contracts
Sources: Loan and Security Agreement (Alon USA Energy, Inc.), First Amendment Agreement (Alon USA Energy, Inc.)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent satisfied, as determined by Agent, before this Amendment is effective (the date upon which of such conditions are satisfiedeffectiveness, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this Amendment, fully executed by each Credit Party, Agent and each Lender.
(b) Agent shall have received a closing certificate signed by an Authorized Officer of each Credit Party dated as of the Effective Date stating that each of the representations and warranties contained herein and set forth in the Loan Agreement, as amended hereby, shall be Section 3 of this Amendment are true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;date.
(c) The Borrowers Agent shall have received a certificate of an Authorized Officer of each Credit Party dated as of the Effective Date certifying (i) to the effect that (A) attached thereto is a true and complete copy of the Organizational Documents of such Credit Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative, certifying that such Organizational Documents have not been amended since the Closing Date, (B) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Credit Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such resolutions are in full force and effect or in the alternative, certifying that the resolutions delivered to the Agent each on the Closing Date by such Credit Party have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such previously delivered resolutions are in full force and effect and (C) attached thereto is a true and complete copy of the following, in good standing certificates for each case, in form and substance satisfactory Credit Party dated not more than thirty (30) days prior to the Agent Effective Date, issued by the Secretary of State or other appropriate official of each Credit Party’s jurisdiction of organization and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment as to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, incumbency and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer specimen signature of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of Authorized Officer executing this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (any Other Document on behalf of any Credit Party and signed by another officer as to the Lenders), the Borrowers, Holdings, incumbency and one or more Affiliates specimen signature of the Borrowers or Holdings that are obligated Authorized Officer executing the certificate pursuant to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)this clause.
(d) The Borrowers Parent Guarantor shall have paid to the Agent and for the Lenders all reasonable and documented feesaccount of each Lender party hereto, costs, and expenses owed a consent fee equal to and/or incurred by 0.50% of such Lender’s Commitment as of the Agent and date hereof (after giving effect to the Lenders arising in connection with effectiveness of this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, revised Schedule 1.2(a) of the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;Agreement).
(e) Holdings All fees and the Borrowers shall have delivered to expenses of the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries its affiliates required to be delivered paid or reimbursed at or prior to the Effective Date pursuant to Section 10.1.4(a)(vii) the Fee Letter, dated as of April 28, 2016 by and among the Loan Agreement for Parent Guarantor, the 2009 Fiscal YearAgent and PNC Capital Markets LLC shall have been paid in full, and (ii) an operating report prepared by all fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in connection with the Borrowers Credit Agreement and this Amendment shall have been paid in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;full.
(f) The Agent shall have received such All other documents, corporate resolutions, corporate certificates, documents and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken legal matters in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the been delivered or executed or recorded, as required number of lenders under the Term Loan Facility to this Amendmentby Agent.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent satisfied, as determined by Agent, before this Amendment is effective (the date upon which of such conditions are satisfiedeffectiveness, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this Amendment, the representations fully executed by each Credit Party, Agent and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);Lenders constituting Required Lenders.
(b) After giving effect With respect to this Amendmenteach Mortgage, no Default or Event of Default Agent shall have occurred and be continuing;received:
(ci) The Borrowers shall have delivered to the Agent each of the following, in each casewritten confirmation, in form and substance reasonably satisfactory to the Agent and its Agent, from local counsel in their discretionthe jurisdiction in which the Real Property is located substantially to the effect that:
(iA) an executed original the recording of this Amendment;the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement and the Other Documents, for the benefit of the Secured Parties; and
(B) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement and the Other Documents, for the benefit of the Secured Parties; and
(ii) an amendment a title search to the Fee Letter;applicable Real Property encumbered by a Mortgage demonstrating that such real property is free and clear of all Liens (except Permitted Encumbrances).
(iiic) Agent shall have received a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the due authorizationeach improved Real Property that is subject to a Mortgage (together with a notice about special flood hazard area status and flood disaster assistance duly executed by each Borrower and each Credit Party relating thereto, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required) and, with respect to any Real Property that is subject to a Mortgage on which any “building” (as defined in the Flood Laws, defined in the Credit Agreement) is located in a special flood hazard area, evidence of flood insurance as and to the extent required by under the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) Agent shall have received, in form and substance reasonably satisfactory to Agent, certificates evidencing the Credit Parties’ casualty insurance policies, together with loss payable endorsements on Agent’s standard form of lender loss payee endorsement naming Agent as lender loss payee, and certificates evidencing the Credit Parties’ liability insurance policies, together with endorsements naming Agent as an additional insured.
(e) Agent shall have received the results of UCC Lien searches with respect to the Credit Parties in each jurisdiction reasonably requested by the Agent as of a date reasonably satisfactory to the Agent.
(f) Agent shall have received a closing certificate signed by an Authorized Officer of each Credit Party dated as of the Effective Date stating that each of the representations and warranties set forth in Section 3 of this Amendment are true and correct on such date.
(g) Agent shall have received a certificate of an Authorized Officer of each Credit Party dated as of the Effective Date certifying (i) to the effect that (A) attached thereto is a true and complete copy of the Organizational Documents of such Credit Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative, certifying that such Organizational Documents have not been amended since the Closing Date, (B) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Credit Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such resolutions are in full force and effect or in the alternative, certifying that the resolutions delivered to the Agent on the Closing Date by such Credit Party have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such previously delivered resolutions are in full force and effect and (C) attached thereto is a true and complete copy of the good standing certificates for each Credit Party dated not more than thirty (30) days prior to the Effective Date, issued by the Secretary of State or other appropriate official of each Credit Party’s jurisdiction of organization and (ii) as to the incumbency and specimen signature of each Authorized Officer executing this Amendment and any Other Document on behalf of any Credit Party and signed by another officer as to the incumbency and specimen signature of the Authorized Officer executing the certificate pursuant to this clause.
(h) The Borrowers Parent Guarantor shall have paid to the Agent and for the Lenders all reasonable and documented feesaccount of each Applicable Lender (as defined below), costs, and expenses owed a consent fee equal to and/or incurred by 0.50% of such Applicable Lender’s Commitment as of the Agent and the Lenders arising in connection with this Amendment and the documents and opinions date hereof. “Applicable Lender” shall mean each Lender that has executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent its signature page to this Amendment prior to 5:00 p.m., New York City time, on Wednesday, November 18, 2015 or such later date and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared time specified by the Borrowers Parent Guarantor and notified in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) writing to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to Lenders by the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (become effective at the option of Lenders time and Agenton the date (the “Ninth Amendment Effective Date”) until each of upon which the following conditions precedent has been satisfied are satisfied:
(i) the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment from the Borrower, each of the other Loan Parties and each Incremental B-2021 Term Lender;
(ii) the Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Loan Parties, in a form reasonably acceptable to the Administrative Agent;
(iii) the Administrative Agent shall have received a solvency certificate executed by a senior financial officer of the Borrower in substantially the form of Exhibit B;
(iv) the Administrative Agent shall have received:
(a) a copy of the resolutions or equivalent action, in form and substance reasonably satisfactory to the Agent (Administrative Agent, of the date upon which such conditions are satisfiedBoard of Directors of each Loan Party authorizing, the “Second execution, delivery and performance of this Agreement, certified by the secretary, an assistant secretary or other authorized representatives of such Loan Party as of the Ninth Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, which certificate shall be true in a form reasonably satisfactory to the Administrative Agent and correct shall state that the resolutions or other action thereby certified have not been amended, modified (except as of the date hereof as if made on the date hereofany later such resolution or other action may modify any earlier such resolution or other action), except for such representations revoked or rescinded and warranties limited by their terms to a specific date (such representations are in full force and warranties being true and correct as of the specified date relative thereto)effect;
(b) After giving effect a certificate of each Loan Party, dated as of the Ninth Amendment Effective Date, as to the incumbency and signature of the officers or other authorized signatories of such Loan Party executing this AmendmentAmendment executed by a Responsible Officer or other authorized representative and the secretary, no Default any assistant secretary or Event another authorized representative of Default shall have occurred and be continuingsuch Loan Party;
(c) The Borrowers shall have delivered to the Agent each copies of the followingcertificate or articles of incorporation and by-laws (or other similar governing documents serving the same purpose) of each Loan Party, certified as of the Ninth Amendment Effective Date as complete and correct copies thereof by the secretary, an assistant secretary or other authorized representative of such Loan Party; and
(d) a certificate executed by a senior financial officer of the Borrower, certifying compliance with the financial test set forth in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
clause (i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) abovedefinition of “Maximum Incremental Facilities Amount” in the Credit Agreement;
(v) such information as requested by a customary borrowing notice shall have been delivered to the Agent to enable the Agent to calculate and implement the Earnout ReserveAdministrative Agent;
(vi) a certificate signed the Incremental B-2021 Term Lenders shall have received at least three business days prior to the Ninth Amendment Effective Date all documentation and other information about the Borrower and the other Loan Parties as has been reasonably requested in writing at least ten business days prior to the Ninth Amendment Effective Date by a Senior Officer of each Obligor certifying such Incremental B-2021 Term Lenders that no Default or Event of Default has occurred they reasonably determine is required by regulatory authorities under applicable “know your customer” and is continuing anti-money laundering rules and that no default or event of default under regulations, including, without limitation, the Term Loan Agreement has occurred PATRIOT Act and is continuing31 C.F.R. §1010.230;
(vii) a Borrowing Base Certificate as of no more than all fees required to be paid on the Ninth Amendment Effective Date pursuant to that certain Engagement Letter among the Borrower and the Incremental Arrangers and reasonable out-of-pocket expenses required to be paid on the Ninth Amendment Effective Date pursuant to such Engagement Letter, to the extent invoiced at least three Business Days business days prior to the Second Ninth Amendment Closing DateEffective Date (or such later date as the Borrower may reasonably agree) shall, reflecting upon the amendments set forth herein and initial borrowing of Incremental B-2021 Term Loans, have been paid (which amounts may be offset against the implementation proceeds of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;Incremental B-2021 Term Loans); and
(viii) a favorable opinion of counsel substantially concurrently with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf making of the Lenders)Incremental B-2021 Term Loans, the Borrowers, Holdings, and one or more Affiliates Borrower shall use all of the Borrowers or Holdings that are obligated Net Cash Proceeds thereof to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget prepay a portion of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, Initial Term Loans then outstanding and (ii) an operating report prepared by pay accrued and unpaid interest on such Initial Term Loans. The Incremental Arrangers shall promptly notify the Borrowers in Borrower and the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent Lenders of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentNinth Amendment Effective Date.
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective as of the Lenders and first date (such date being referred to as the Agent (at the option of Lenders and Agent“Amendment Agreement Effective Date”) until on which each of the following conditions precedent shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received from the Borrower, each Issuing Bank, the Swingline Lender, the Issuing Banks Agent, each New Revolving Lender, each Extending Revolving Lender and such other Lenders as, together with the Extending Revolving Lenders, shall represent the Required Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Amendment) that such party has been satisfied signed a counterpart of this Amendment;
(b) the Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to the Administrative Agent, of the chief financial officer of the Borrower, dated the Amendment Agreement Effective Date, certifying as to the solvency of the Borrower and its Subsidiaries, taken as a whole, and of the Loan Parties, taken as a whole;
(c) the Administrative Agent shall have received a favorable written opinion (dated the date upon which such conditions are satisfiedAmendment Agreement Effective Date and addressed to the Administrative Agent, each Issuing Bank, the “Second Amendment Effective Date”):Issuing Banks Agent, each New Revolving Lender and each Lender) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(ad) After giving effect the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to this Amendmentthe organization, existence and good standing of the Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrower, the Loan Documents or the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the representations and warranties contained herein and of the Borrower set forth in the Loan Agreement, as amended hereby, Section 6 hereof shall be true and correct as of the date hereof as if made on Amendment Agreement Effective Date, and the date hereofAdministrative Agent shall have received a certificate, except for such representations dated the Amendment Agreement Effective Date and warranties limited signed by their terms to the Chief Executive Officer or a specific date (such representations and warranties being true and correct as Financial Officer of the specified date relative thereto);
(b) After giving effect to this AmendmentBorrower, no Default or Event of Default confirming the accuracy thereof, which shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iif) an amendment to the Fee Letter;
(iii) a jointAdministrative Agent shall have received, irrevocable instruction letter from for account of the BorrowerTranche B Lenders entitled thereto, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items Amendment Fees required to have been delivered be paid pursuant to Section 3(a11(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselhereof; and
(ixg) a Subordination the Administrative Agent shall have received all amounts due and payable to the Administrative Agent on or prior to the Amendment Agreement Effective Date pursuant to the Loan Documents, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by and among the Agent (on behalf of the Lenders), the Borrowers, HoldingsBorrower hereunder or under any other Loan Document, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse Administrative Agent and its Affiliates, and the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Creditapplicable Lenders, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid received all amounts due and payable on or prior to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed Amendment Agreement Effective Date pursuant to and/or incurred by the Agent and the Lenders arising certain fee letter agreements entered into in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such paymentstransactions contemplated hereby, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers including reimbursement of all trade payables aged in excess out-of-pocket expenses (including reasonable fees, charges and disbursements of their due dates, Availability shall be greater than zero;
(ecounsel) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered reimbursed or paid by the Borrower pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentletter agreements.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Effectiveness of this Amendment. This Amendment shall not be binding become effective as of the date hereof upon the Lenders and the Agent (at the option of Lenders and Agent) until each satisfaction or waiver of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):precedent:
(a) After giving effect to the Additional Term B-3 Facility Funding Date under, and as defined in, the Additional Term B-3 Facility Joinder Agreement has occurred;
(b) the RCF Refinancing Amendment Effective Date under, and as defined in, the RCF Refinancing Amendment Agreement has occurred;
(c) this AmendmentAmendment shall have been duly executed by the Initial Borrowers, the Guarantors, the Security Trustee, the Administrative Agent (for itself and on behalf of the Consenting Lenders), the Swing Line Lender and the L/C Issuer;
(d) the representations and warranties contained herein and set forth in the Loan Agreement, as amended hereby, Section 3 below shall be true and correct as of the date hereof as if made on Amendment Effective Date;
(e) the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as Administrative Agent’s receipt of the specified date relative theretofollowing, to the extent not previously delivered to the Administrative Agent, each of which shall be originals or pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate of a Responsible Officer of each Loan Party attaching:
(A) a copy of the constitutional documents of each Loan Party (including, for the avoidance of doubt, in respect of a Loan Party incorporated in England and Wales, a copy of its PSC Register);
(bB) After giving a copy of a resolution of the board of directors or, if applicable, a committee of the board, or the sole member, managing member, general or limited partner, of each Loan Party (A) approving the terms of, and the transactions contemplated by, this Amendment and each other document executed or delivered by such Loan Party in order to give effect to the transactions contemplated hereunder and resolving that it execute, deliver and perform its obligations under this Amendment; (B) authorizing a specified person or persons to execute this Amendment; and (C) authorizing a specified person or persons, on its behalf, to sign and/or deliver all documents and notices to be signed and/or delivered by it under or in connection with this Amendment;
(C) a specimen of the signature of each person authorized by the resolution set forth above in relation to this Amendment; 62756689_5
(D) a certificate of good standing (or equivalent) in respect of each Loan Party issued by the relevant Governmental Authority in its jurisdiction, no Default or Event of Default shall have occurred and be continuingif available in such jurisdiction;
(cii) The Borrowers shall have delivered to a legal opinion from Ropes & ▇▇▇▇ International LLP, New York counsel for the Agent each of the following, in each caseLoan Parties, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee LetterAdministrative Agent;
(iii) a jointlegal opinion from Ropes & ▇▇▇▇ International LLP, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent English legal counsel to the Crack Spread Hedging CounterpartyLoan Parties, countersigned by in form and substance reasonably satisfactory to the Crack Spread Hedging Counterparty;Administrative Agent; and
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate a legal opinion from ▇▇▇▇▇▇ and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date▇▇▇▇▇▇, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of Cayman Islands counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan AgreementParties, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance reasonably satisfactory to the Administrative Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Liberty Global PLC)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Fifth Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Fifth Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect the Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, each Swingline Lender and each Lender whose name appears on Schedule 2.01 hereto (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment, the representations and warranties contained herein and in the Loan Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Fifth Restatement Effective Date) of each of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the followingBorrowers and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, Group General Counsel and Secretary of the Company, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iic) an amendment the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Fee Letterorganization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(iiid) the Administrative Agent shall have received a jointcertificate, irrevocable instruction letter from dated the Borrower, the Term Loan Agent, Fifth Restatement Effective Date and the Agent to the Crack Spread Hedging Counterparty, countersigned signed by the Crack Spread Hedging CounterpartyPresident and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming the accuracy of the representations and warranties set forth in Section 3;
(ive) the Administrative Agent and each of the items required to Lender shall have been delivered pursuant to Section 3(a) above;
(v) such received all documentation and other information as requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Agent to enable USA PATRIOT Act, the Agent to calculate Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and implement Terrorist Financing Act (Canada) and the Earnout Reserve;
Anti-terrorism Act (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more Canada), not fewer than three five Business Days prior to the Second Amendment Closing Fifth Restatement Effective Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiif) a favorable opinion the Borrowers shall have paid, or substantially concurrently with the satisfaction of counsel with respect the other conditions precedent set forth in this Section shall pay, (i) the principal and all interest accrued on any outstanding Borrowings, and all fees referred to in Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewithFifth Restatement Effective Date under the Fourth Restated Credit Agreement, and such (ii) any other matters amounts owing to, or accrued under the Fourth Restated Credit Agreement for the account of any Lender under the Fourth Restated Credit Agreement that will not continue as may be reasonably required by a Lender under the Agent and its counselFifth Restated Credit Agreement; and
(ixg) a Subordination Agreement by the Administrative Agent and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers each Lender shall have paid received all fees and other amounts due and payable on or prior to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising Fifth Restatement Effective Date in connection with this Amendment Agreement, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document. The Administrative Agent shall notify the Company and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, Lenders of the funding of Loans and issuances of Letters of Credit on the Second Amendment Fifth Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Second Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Second Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect to this Amendmentthe Administrative Agent shall have received from the Company and each other Loan Party (including the Irish Borrower), each Issuing Bank, the representations Swingline Lender and warranties contained herein and in each Lender whose name appears on Schedule 2.01 hereto (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Loan Administrative Agent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent each Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Second Restatement Effective Date) of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrowers, (ii) ▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the followingCompany, and (iii) ▇▇▇▇▇▇ ▇▇▇, counsel for the Irish Borrower on the Second Restatement Effective Date, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iic) an amendment the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Fee Letterorganization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(iiid) the Administrative Agent shall have received a jointcertificate, irrevocable instruction letter from dated the Borrower, the Term Loan Agent, Second Restatement Effective Date and the Agent to the Crack Spread Hedging Counterparty, countersigned signed by the Crack Spread Hedging CounterpartyPresident and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming the accuracy of the representations and warranties set forth in Section 3 hereof;
(ive) the Administrative Agent and each of the items required to Lender shall have been delivered pursuant to Section 3(a) above;
(v) such received all documentation and other information as requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Agent to enable USA PATRIOT Act, the Agent to calculate Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and implement Terrorist Financing Act (Canada) and the Earnout Reserve;
Anti-terrorism Act (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more Canada), not fewer than three five Business Days prior to the Second Amendment Closing Restatement Effective Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiif) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to paid, or substantially concurrently with the Agent and satisfaction of the Lenders
other conditions precedent set forth in this Section shall pay, (i) all interest on outstanding Borrowings, and all fees referred to in Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the projections and consolidated operating budget of Second Restatement Effective Date under the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal YearFirst Restated Credit Agreement, and (ii) an operating report prepared by any other amounts owing to, or accrued under the Borrowers in First Restated Credit Agreement for the ordinary course of business for each of January 2009 and February 2009 containing account of, any Lender under the information set forth on Schedule 10.1.4(a)(ii) to First Restated Credit Agreement that will not continue as a Lender under the Loan Second Restated Credit Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;; and
(g) All proceedings taken in connection with the transactions contemplated by this Amendment Administrative Agent and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers each Lender shall have received all fees and other amounts due and payable on or prior to the prior written consent Second Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document. The Administrative Agent shall notify the Company and the Lenders of the Term Loan Agent Second Restatement Effective Date, and the required number of lenders under the Term Loan Facility to this Amendmentsuch notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and the Agent (at the option of Lenders and Agent) until each of date on which the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agentundersigned Noteholders (such date being hereinafter referred to as the "Effective Date"):
(a) execution and delivery of this Amendment by the Obligors and Required Noteholders;
(b) execution and delivery to the Noteholders by the Guarantor of a Reaffirmation of Guaranty in the form attached hereto as Exhibit A (the "Reaffirmation of Guaranty");
(c) delivery to the Noteholders of the pro forma compliance certificate required pursuant to the last paragraph of Section 10.1 of the Note Agreement, reflecting the consummation of the Cornerstone Acquisition;
(d) evidence that the Cornerstone Acquisition has been approved by the required lenders under the Bank Credit Agreement and the required note holders under the 2003 Note Purchase Agreement, in each case on terms that do not require any of the Affected Subsidiaries to guarantee the Obligors' obligations under either thereof;
(e) delivery to the Noteholders of certified resolutions of Holdings and Sovran, authorizing this Amendment and the Reaffirmation of Guaranty;
(f) the accuracy on the Effective Date of the representations and warranties in Section 6.1; <PAGE>
(g) All proceedings taken in connection with payment by the transactions contemplated Obligors to each Noteholder of an amendment fee equal to one-twentieth of one percent (0.05%) of the principal amount of Notes held by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; andsuch Noteholder;
(h) The Borrowers shall have received payment by the prior written consent Obligors of the Term Loan Agent fees and expenses described in the required number of lenders under Note Agreement and invoiced to the Term Loan Facility Obligors prior to this Amendment.the date hereof; and
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders effective only if and the Agent (at the option of Lenders and Agent) until each when all of the following conditions precedent has have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfieddate, the “Second Amendment Effective Date”):
(a) After giving effect this Amendment is signed by the Borrower, the Administrative Agent for itself on behalf of the respective Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders under Revolving Credit Agreement to execute this AmendmentAmendment on their behalf), and the Subsidiary Guarantors identified on the signature pages hereof, and Borrower and such Subsidiary Guarantors shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) each of the representations and warranties contained herein and in the Loan Agreement, as amended hereby, Section 3 of this Amendment shall be true and correct as of in all respects and, in furtherance thereof, the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default Borrower shall have occurred and be continuing;
(c) The Borrowers shall have delivered to received all necessary approvals and/or consents from the Agent each of the followingGovernmental Authorities, in each caseif any, in form and substance reasonably satisfactory to the Administrative Agent for the execution and its counsel delivery of this Amendment and the performance of the obligations of the Borrower under or in their discretion:
(i) an executed original respect of this Amendment;
(iic) an amendment the Administrative Agent shall have received this Amendment and each other document required to be executed by the Borrower under this Amendment, if any (the “Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of Borrower, in form and substance reasonably satisfactory to the Fee LetterAdministrative Agent;
(iiid) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Administrative Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each shall have received an Effective Date certificate dated as of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate Effective Date and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Financial Officer or other authorized officer of each Obligor certifying that no Default or Event of Default has occurred the Borrower in form and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior substance reasonably satisfactory to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselAdministrative Agent; and
(ixe) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent Lenders and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Administrative Agent shall have received all fees and expenses required to be paid hereunder, under the Revolving Credit Agreement or under any engagement or fee letter entered into by such other documentsparty and the Borrower for which invoices have been presented, corporate resolutionsbefore the Effective Date. Notwithstanding anything to the contrary herein, corporate certificates, and information in the event that the Agent shall requireEffective Date does not occur on or before 5:00 p.m. EST on December 7, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by 2017, this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole null and absolute discretion; and
(h) The Borrowers shall have received the prior written consent void and of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentno further force or effect.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders effective only if and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):when:
(a) After giving effect this Amendment is signed by the Borrower, the Equity Pledgor, the other Loan Parties party hereto, the Administrative Agent and the Required Lenders, and each such party shall have delivered their fully executed signature pages hereto to this Amendmentthe Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Term Loan Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto, the Term Loan Administrative Agent and the other parties thereto, which amendment shall (i) provide for an increase in Term B Loans (as defined in the Building Loan Agreement) in an aggregate principal amount of not more than $35,000,000 and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained herein and in the Loan Agreement, as amended hereby, Section 3 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the date hereof as if made on Effective Date and signed by a Financial Officer or other authorized officer of the date hereofBorrower, except for such representations and warranties limited by their terms to (ii) a specific date (such representations and warranties being true and correct Solvency Certificate dated as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred Effective Date and be continuing;
(c) The Borrowers shall have delivered to signed by the Agent each chief financial officer of the followingBorrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent (such certificates, together with this Amendment and its counsel in their discretion:
(i) an each other document required to be executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from by the Borrower, the Term Loan Agent, Equity Pledgor and the Agent to other Loan Parties under this Amendment, the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second “First Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselDocuments”); and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding effective upon the satisfaction (or waiver) of the following:
(a) this Amendment is signed by the Borrower, the Required Lenders and each such party shall have delivered their fully executed signature pages hereto to Credit Suisse Securities (USA), LLC, as sole lead arranger of this Amendment (in such capacity, the Agent “Second Amendment Arranger”);
(at b) the option Second Amendment Arranger shall have received payment of Lenders a consent fee on behalf of each Lender consenting to this Amendment in an amount equal to 0.20% of such consenting Lender’s Loans and AgentRevolving Obligations on the Second Amendment Effective Date;
(c) until each of on the following conditions precedent has been satisfied in form and substance satisfactory Second Amendment Effective Date, the Borrower shall have paid (i) to the Second Amendment Arranger all invoiced reasonable costs, fees and out-of-pocket expenses (including, without limitation, reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Second Amendment Arranger) and other compensation payable to the Second Amendment Arranger pursuant to separate agreements entered into between the Borrower and the Second Amendment Arranger and (ii) to the Administrative Agent all invoiced reasonable costs, fees and out-of-pocket expenses (including, without limitation, reasonable legal fees and expenses) payable to the Administrative Agent pursuant to the Credit Agreement; and
(d) on the Second Amendment Effective Date and immediately after giving effect to this Amendment (x) there shall exist no Default or Event of Default and (ii) all representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (it being understood and agreed that (x) any representation and warranty that is qualified by materiality or Material Adverse Effect shall be required to be true and correct in all respects and (y) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects (or all respects, as the case may be) only as of such specified date). This Amendment shall be deemed to be effective on the date upon which such conditions are satisfied, (the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent which each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and foregoing conditions is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)satisfied.
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Affinity Gaming)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective as of the Lenders and first date (such date being referred to as the Agent (at the option of Lenders and Agent“Restatement Effective Date”) until on which each of the following conditions precedent shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) each Issuing Bank, (iii) the Swingline Lender, (iv) each Extending Term Lender, and (v) such Lenders as shall represent the Required Lenders, either (A) a counterpart of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Amendment) that such party has been satisfied signed a counterpart of this Amendment;
(b) each Subsidiary Loan Party shall have entered into a Reaffirmation Agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(c) the Administrative Agent shall have received a favorable written opinion (addressed to the date upon which Administrative Agent and the Lenders and dated the Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received such conditions are satisfieddocuments and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the “Second Amendment Effective Date”):authorization of the transactions contemplated hereby and any other legal matters relating to each Loan Party, the Loan Documents or the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(ae) After giving effect to this Amendment, the representations and warranties contained herein and of the Borrower set forth in the Loan Agreement, as amended hereby, Section 5 hereof shall be true and correct as of the date hereof as if made on Restatement Effective Date, and the date hereofAdministrative Agent shall have received a certificate, except for such representations dated the Restatement Effective Date and warranties limited signed by their terms to a specific date (such representations and warranties being true and correct as Financial Officer of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each caseBorrower, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Administrative Agent, and confirming the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselaccuracy thereof; and
(ixf) a Subordination Agreement the Administrative Agent shall have received the Amendment Fee (as defined below) and all amounts due and payable to the Administrative Agent on or prior to the Restatement Effective Date pursuant to the Loan Documents, including, to the extent invoiced, reimbursement of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by and among the Agent (on behalf of the Lenders), the Borrowers, HoldingsBorrower hereunder or under any other Loan Document, and one or more the Administrative Agent and its Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid received all amounts due and payable on or prior to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed Restatement Effective Date pursuant to and/or incurred by the Agent and the Lenders arising that certain letter agreement entered into in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect transactions contemplated hereby, including, to such paymentsthe extent invoiced, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers reimbursement of all trade payables aged in excess out-of-pocket expenses (including reasonable fees, charges and disbursements of their due dates, Availability shall be greater than zero;
(ecounsel) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered reimbursed or paid by the Borrower pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentletter agreement.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and first date (the Agent (at the option of Lenders and Agent“Effective Date”) until on which each of the following conditions precedent has shall have been satisfied satisfied:
(a) The Lenders shall have received from the Borrower a counterpart of this Amendment signed on behalf of the Borrower, and the Borrower shall have received from the Lenders counterparts of this Amendment signed on behalf of the Lenders.
(b) The Lenders shall have received such customary documents and certificates in connection with the effectiveness of this Amendment as the Designated Lender may reasonably request relating to the organization, existence and good standing of the Borrower and the authorization of this Amendment, all in form and substance reasonably satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;Designated Lender.
(c) The Borrowers Lenders shall have delivered received a written opinion (addressed to the Agent Lenders and dated the Effective Date) of each of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the followingBorrower, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Arsht & ▇▇▇▇▇▇▇ LLP, special Delaware counsel to the Borrower, in each case, case in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)Designated Lender.
(d) The Borrowers shall have paid to the Agent and the Lenders all All reasonable and documented out-of-pocket expenses of the Lenders (limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, costscharges and disbursements of Cravath, and expenses owed to and/or Swaine & ▇▇▇▇▇ LLP) incurred by the Agent and the Lenders arising in connection with this Amendment shall have been paid by the Borrower. The Designated Lender shall notify the Borrower and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, Lenders of the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Sources: Loan Agreement (Weber Inc.)
Effectiveness of this Amendment. This The effectiveness of this Amendment shall not be binding upon is subject to the Lenders and the Agent (at the option of Lenders and Agent) until each satisfaction of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the first date upon on which such conditions are satisfied, precedent shall have been satisfied is referred to as the “Second Amendment Effective Date”):
(a) After giving effect to this AmendmentThe Initial First-Out Lender shall have executed a counterpart hereof and shall (or its counsel shall) have received from the Administrative Agent, the representations Borrower and warranties contained herein and each other Loan Party a counterpart of this Amendment signed on behalf of such party (which counterparts may be delivered by facsimile or electronic transmission in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto.pdf or .tif format);.
(b) After giving The Primoris Merger Agreement shall not have been terminated and shall be in full force and effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;in accordance with the terms thereof.
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan AgentForbearance Agreement, and the Agent to the Crack Spread Hedging Counterpartyforbearances provided for therein, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to shall not have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate terminated, shall be in full force and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve effect in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewithterms thereof, and such other matters as may be reasonably required by the Agent shall not have been amended, amended and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders)restated, the Borrowerssupplemented or otherwise modified since March 27, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)2018.
(d) The Limited Forbearance Agreement, dated as of March 27, 2018 (the “ABL Forbearance Agreement”), among Willbros United States Holdings, Inc., the Borrowers (solely for this purpose, as defined therein), the Borrower, the other persons party thereto as Guarantors (solely for this purpose, as defined therein), the lenders party thereto and Bank of America, N.A., and the forbearances provided for therein, shall not have been terminated, shall be in full force and effect in accordance with the terms thereof, and shall not have been amended, amended and restated, supplemented or otherwise modified since March 27, 2018.
(e) The Put/Call Agreement shall not have been terminated, shall be in full force and effect in accordance with the terms thereof, and shall not have been amended, amended and restated, supplemented or otherwise modified since March 27, 2018.
(f) The Initial First-Out Lender (or its counsel) shall have paid to received a certificate dated the Agent Amendment Effective Date from a Responsible Officer of the Borrower certifying that on and as of the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections representations and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) warranties of the Loan Agreement for Parties contained in Section 5 below are true and correct in all material respects (provided that to the 2009 Fiscal Yearextent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall be certified to be true and correct in all respects), except to the extent any such representation and warranty relates to an earlier date, in which case such representation and warranty shall be certified to be true and correct in all material respects (provided that to the extent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall be certified to be true and correct in all respects) as of such earlier date, and (ii) the conditions set forth in Sections 3(c) and 3(d) are satisfied.
(g) The Initial First-Out Lender (or its counsel) shall have received a certificate dated the Amendment Effective Date from the Secretary or Assistant Secretary of each Loan Party (i) attaching each Organizational Document of such Loan Party, (ii) attaching resolutions of the Board of Directors, Board of Managers or similar governing body of such Loan Party approving and authorizing the execution, delivery and performance of this Amendment and certifying that such resolutions are in full force and effect as of the Amendment Effective Date and have not been amended or rescinded, (iii) attaching a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of organization, dated as of a recent date prior to the Amendment Effective Date and (iv) including a customary incumbency certification (or certifying that the incumbency certification provided to the Initial First-Out Lender in connection with the Seventh Amendment remains accurate in all respects).
(h) The Initial First-Out Lender (or its counsel) shall have received (i) an opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Borrower, and (ii) an operating report prepared by the Borrowers in the ordinary course opinion of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Delaware counsel to the Loan AgreementBorrower, as amended hereby;in each case, dated the Amendment Effective Date and addressed to the Initial First-Out Lender and in a form reasonably acceptable to the Initial First-Out Lender (or its counsel).
(fi) The Administrative Agent and the Initial First-Out Lender shall have received such other documents, corporate resolutions, corporate certificates, a Notice of Borrowing with respect to the Tranche A Additional First-Out Loan (which shall be in the form agreed by the Initial First-Out Lender and information that the Agent Borrower and shall require, each include an exhibit setting forth the updated 14-week cash flow budget of the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Agent;
(g) All proceedings taken Initial First-Out Lender). Upon the satisfaction of the conditions set forth in connection with this Section 3, the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto Initial First-Out Lender shall be satisfactory provide to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent Borrower and the required number of lenders under other parties hereto a written acknowledgement that the Term Loan Facility to this AmendmentAmendment Effective Date has occurred.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding effective upon the Lenders and the Agent satisfaction (at the option of Lenders and Agentor waiver) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):following:
(a) After giving effect to this AmendmentAmendment is signed by the Borrower, the representations other Credit Parties party hereto, the Required Lenders, each Lender holding an Initial Term Loan and warranties contained herein the Supermajority Revolving Lenders (only for the purposes of the effectiveness of Section 2(j)) and in the Loan Agreementeach such party shall have delivered their fully executed signature pages hereto to Credit Suisse Securities (USA), LLC, as amended herebysole lead arranger of this Amendment (in such capacity, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto“First Amendment Arranger”);
(b) After on the First Amendment Effective Date, the Borrower shall have paid to the First Amendment Arranger all invoiced reasonable costs, fees and out-of-pocket expenses (including, without limitation, reasonable legal fees and expenses) and other compensation payable to the First Amendment Arranger pursuant to separate agreements entered into between the Borrower and the First Amendment Arranger; and
(c) on the First Amendment Effective Date and immediately after giving effect to this Amendment, Amendment (x) there shall exist no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared all representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (it being understood and agreed that (x) any representation and warranty that is qualified by materiality or Material Adverse Effect shall be required to be true and correct in all respects and (y) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects (or all respects, as the Borrowers in case may be) only as of such specified date). This Amendment shall be deemed to be effective on the ordinary course of business for date (the “First Amendment Effective Date”) on which each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentforegoing conditions is satisfied.
Appears in 1 contract
Sources: Credit Agreement (Affinity Gaming)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent satisfied, as determined by Agent, before this Amendment is effective (the date upon which of such conditions are satisfiedeffectiveness, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this Amendment, fully executed by each Credit Party, Agent and Lenders constituting Required Lenders.
(b) Agent shall have received a closing certificate signed by an Authorized Officer of each Credit Party dated as of the Effective Date stating that each of the representations and warranties contained herein and set forth in the Loan Agreement, as amended hereby, shall be Section 3 of this Amendment are true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;date.
(c) The Borrowers Agent shall have received a certificate of an Authorized Officer of each Credit Party dated as of the Effective Date certifying
(i) to the effect that (A) attached thereto is a true and complete copy of the Organizational Documents of such Credit Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative, certifying that such Organizational Documents have not been amended since the Closing Date, (B) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Credit Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such resolutions are in full force and effect or in the alternative, certifying that the resolutions delivered to the Agent each on the Closing Date by such Credit Party have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such previously delivered resolutions are in full force and effect and (C) attached thereto is a true and complete copy of the following, in good standing certificates for each case, in form and substance satisfactory Credit Party dated not more than thirty (30) days prior to the Agent Effective Date, issued by the Secretary of State or other appropriate official of each Credit Party’s jurisdiction of organization and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment as to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, incumbency and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer specimen signature of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of Authorized Officer executing this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (any Other Document on behalf of any Credit Party and signed by another officer as to the Lenders), the Borrowers, Holdings, incumbency and one or more Affiliates specimen signature of the Borrowers or Holdings that are obligated Authorized Officer executing the certificate pursuant to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)this clause.
(d) The Borrowers Parent Guarantor shall have paid to the Agent and for the Lenders all reasonable and documented feesaccount of each Applicable Lender (as defined below), costs, and expenses owed a consent fee equal to and/or incurred by 0.15% of such Applicable Lender’s Commitment as of the Agent and the Lenders arising in connection with this Amendment and the documents and opinions date hereof. “Applicable Lender” shall mean each Lender that has executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent its signature page to this Amendment prior to 5:00 p.m., New York City time, on 12:00 noon, March 1, 2016 or such later date and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared time specified by the Borrowers Parent Guarantor and notified in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) writing to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to Lenders by the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders date (the “Effective Date”) when:
(i) all unpaid, due and owing interest in respect of the Notes (for clarification purposes, the aggregate amount of such unpaid, due and owing interest as of March 30, 2004 equals $2,353,463.00) shall have been received by the Investors,
(ii) the Company and the Agent Investors shall have signed a counterpart hereof (at whether the option of Lenders and Agentsame or different counterparts),
(iii) until each Investor shall have received, by wire transfer to an account designated by such Investor, an amendment fee in an amount for such Investor equal to 0.50% of the following conditions precedent outstanding principal amount of the Notes held by such Investor (and such amendment fee shall be fully earned and non-refundable on the Effective Date),
(iv) the Company shall have paid all fees and expenses of O’Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the preparation, execution or delivery of this Amendment and all other unpaid fees and expenses of O’Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with the Purchase Agreement to the extent the amount thereof has been satisfied provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment shall limit the generality of Section 12.4 of the Purchase Agreement,
(v) the Investors shall have received a copy of a duly executed amendment of the Senior Credit Agreement (which amendment shall include, among other matters, a consent with respect to the increase in the Stated Rate contemplated by this Amendment), in form and substance reasonably satisfactory to the Required Investors,
(vi) the Investors shall have received a copy of a duly executed amendment of the Sale and Leaseback Documents, in form and substance reasonably satisfactory to the Required Investors,
(vii) the Investors shall have received a certificate of the Company attaching and attesting to the accuracy and completeness of the following:
(1) a copy of the certificate of incorporation and by-laws of the Company, as amended through the date hereof,
(2) the incumbency and signatures of the officers of the Company executing this Amendment,
(3) a copy of the resolutions of the Board of the Company approving and authorizing the execution, delivery and performance of this Amendment and the consummation of the transactions contemplated hereby, certified by the Secretary or Assistant Secretary as of the Effective Date, which certificate shall be in form and substance satisfactory to the Agent (Required Investors and shall state that the date upon which such conditions resolutions thereby certified are satisfiedin full force and effect and have not been amended, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendmentmodified, the representations and warranties contained herein and in the Loan Agreementrevoked or rescinded, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;and
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent Investors shall have received such other documentsa long form good standing certificate, corporate resolutionsdated as of a recent date, corporate certificates, and information that from the Agent shall require, each State of Minnesota in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent respect of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentCompany.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding become effective, as of the Effective Date, upon the Lenders and the Agent (at the option satisfaction of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):conditions:
(a) After giving effect to the receipt by the Administrative Agent of (i) counterparts of this Amendment, duly executed by the representations Borrower, the Subsidiary Guarantors and warranties contained herein the Required Lenders, and in the Loan Agreement, as amended hereby, shall be true and correct as (ii) counterparts of the date hereof as if made on the date hereofSubsidiary Guaranty, except for such representations and warranties limited duly executed by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)each Subsidiary Guarantor;
(b) After the receipt by the Administrative Agent of such certificates of resolutions or other action, incumbency certificates and/or other certificates of authorized officers of each of the Loan Parties as the Administrative Agent may require evidencing the identity, authority and capacity of the officer or officers of the Loan Parties executing this Amendment or any of the other Loan Documents delivered in connection herewith;
(c) the receipt by the Administrative Agent of such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Parties is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and in each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified in any such other jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(d) the receipt by the Administrative Agent of a favorable opinion of counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, which opinion shall cover (i) the existence, qualification, and power of each Subsidiary Guarantor, (ii) the due authorization, execution, and delivery of the Subsidiary Guaranty by the Subsidiary Guarantors, (iii) that the Subsidiary Guaranty is enforceable against the Subsidiary Guarantors, (iv) that no approvals or consents from third parties or Governmental Authorities (which have not been obtained) are required for the execution, delivery, and performance of the Subsidiary Guaranty by the Subsidiary Guarantors, and (v) that the execution, delivery, and performance of the Subsidiary Guaranty by the Subsidiary Guarantors does not conflict with their respective organizational documents, and be reasonably acceptable to the Administrative Agent.
(e) the receipt by the Administrative Agent of a certificate of an authorized officer of each of the Loan Parties either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(f) the receipt by the Administrative Agent of a duly completed Compliance Certificate signed the Chief Financial Officer of the Borrower, as of the last day of the fiscal quarter of the Borrower ended on June 30, 2011 (based upon the financial statements for the fiscal quarter ending June 30, 2011), after giving effect to the Indebtedness under the 2011 Term Loan Agreement, and any repayment of Indebtedness with the proceeds thereof, evidencing pro forma compliance with each of the financial covenants set forth in Section 6.06 of the Loan Agreement and with the covenant set forth in Section 5.08 of the Loan Agreement (assuming such covenant was in effect on June 30, 2011);
(g) the Administrative Agent shall have received an executed copy of the First Amendment to the Revolver Facility, which, among other things, shall include (i) a consent to the delivery of the Subsidiary Guaranty and the 2011 Term Loan Guarantees by the Material Subsidiaries and (ii) amendments to Sections 7.03 and 7.09 of the Revolver Facility which will permit this AmendmentAmendment and the delivery by the Subsidiary Guarantors of the Subsidiary Guaranty;
(h) the Borrower shall have paid all fees and expenses of the Administrative Agent in connection with this Amendment or otherwise outstanding, including, without limitation, the reasonable fees and expenses of legal counsel to the Lender; and
(i) no Default or Event of Default shall have occurred and be continuing;
(c) . The Borrowers shall have delivered to Administrative Agent will promptly notify the Agent each Borrower and the Lenders of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original effectiveness of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (become effective at the option of Lenders time and Agenton the date (the “Sixth Amendment Effective Date”) until each of upon which the following conditions precedent has been satisfied are satisfied:
(i) the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment from the Borrower, each of the other Loan Parties and each Incremental B-2019 Term Lender;
(ii) the Administrative Agent shall have received the executed legal opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, special counsel to the Loan Parties, in a form reasonably acceptable to the Administrative Agent;
(iii) the Administrative Agent shall have received a solvency certificate executed by a senior financial officer of the Borrower in substantially the form of Annex I to Exhibit C of the Commitment Letter;
(iv) the Administrative Agent shall have received:
(a) a copy of the resolutions or equivalent action, in form and substance reasonably satisfactory to the Agent (Administrative Agent, of the date upon which such conditions are satisfiedBoard of Directors of each Loan Party authorizing, the “Second execution, delivery and performance of this Agreement, certified by the secretary, an assistant secretary or other authorized representatives of such Loan Party as of the Sixth Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, which certificate shall be true in a form reasonably satisfactory to the Administrative Agent and correct shall state that the resolutions or other action thereby certified have not been amended, modified (except as of the date hereof as if made on the date hereofany later such resolution or other action may modify any earlier such resolution or other action), except for such representations revoked or rescinded and warranties limited by their terms to a specific date (such representations are in full force and warranties being true and correct as of the specified date relative thereto)effect;
(b) After giving effect a certificate of each Loan Party, dated as of the Sixth Amendment Effective Date, as to the incumbency and signature of the officers or other authorized signatories of such Loan Party executing this AmendmentAmendment executed by a Responsible Officer or other authorized representative and the secretary, no Default any assistant secretary or Event another authorized representative of Default shall have occurred and be continuingsuch Loan Party;
(c) The Borrowers shall have delivered to the Agent each copies of the followingcertificate or articles of incorporation and by-laws (or other similar governing documents serving the same purpose) of each Loan Party, certified as of the Sixth Amendment Effective Date as complete and correct copies thereof by the secretary, an assistant secretary or other authorized representative of such Loan Party; and
(d) a certificate executed by a senior financial officer of the Borrower, certifying compliance with the financial test set forth in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
clause (i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) abovedefinition of “Maximum Incremental Facilities Amount” in the Credit Agreement;
(v) such information as requested by a customary borrowing notice shall have been delivered to the Agent to enable the Agent to calculate and implement the Earnout ReserveAdministrative Agent;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments other condition precedent set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached Annex I hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to been satisfied (or waived by each party hereto that is not the Agent Borrower). The Incremental Arrangers shall promptly notify the Borrower and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by of the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Sixth Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent satisfied, as determined by Agent, before this Amendment is effective (the date upon which of such conditions are satisfiedeffectiveness, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this Amendment, fully executed by each Credit Party, Agent and Lenders constituting the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);Required Lenders.
(b) After giving effect to this Amendment, no Default or Event of Default The Second Lien Term Loan Documentation shall have occurred been executed and delivered by the parties thereto and shall be continuing;in full force and effect. Without limitation of the foregoing, (i) the collateral agent under the Second Lien Term Loan Documentation and Agent shall concurrently execute and deliver the First Lien/Second Lien Intercreditor Agreement, and (ii) the collateral agent under the Second Lien Term Loan Documentation shall concurrently deliver a joinder to the Junior Lien Intercreditor Agreement in the form attached as Annex II thereto.
(c) The Permitted Second Lien Term Loans shall be concurrently borrowed, and the Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
concurrently (i) an executed original repay not less than $15,000,000 aggregate principal amount of this Amendment;
Advances with proceeds of Permitted Second Lien Term Loans and (ii) an amendment permanently reduce the Maximum Revolving Advance Amount by $10,000,000 to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)$190,000,000.
(d) The Borrowers Titan Acquisition shall be concurrently consummated in accordance with the terms of the Titan Acquisition Agreement. The Titan Acquisition Agreement shall not have been amended in a manner materially adverse to the Lenders.
(e) Agent shall have received a closing certificate signed by an Authorized Officer of each Credit Party dated as of the Effective Date certifying (i) that each of the representations and warranties set forth in Section 3 of this Amendment are true and correct on such date and (ii) compliance with clauses (b) (first sentence) and (d) of this Section 2.
(f) Agent shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to Agent.
(g) Agent shall have received a customary solvency certificate from a senior financial officer (which may be the chief financial officer, accounting officer, treasurer, controller or other senior financial or accounting officer) of the Parent Guarantor (after giving effect to the transactions contemplated hereby and under the Second Lien Term Loan Documentation including the borrowings thereunder on the date hereof) in form reasonably acceptable to Agent and consistent with Section 5.8 of the Credit Agreement.
(h) Agent shall have received a certificate of an Authorized Officer of each Credit Party dated as of the Effective Date certifying (i) to the effect that (A) attached thereto is a true and complete copy of the Organizational Documents of such Credit Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative, certifying that such Organizational Documents have not been amended since the Closing Date, (B) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Credit Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such resolutions are in full force and effect or in the alternative, certifying that the resolutions delivered to Agent on the Closing Date by such Credit Party have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such previously delivered resolutions are in full force and effect and (C) attached thereto is a true and complete copy of the good standing certificates for each Credit Party dated not more than thirty (30) days prior to the Effective Date, issued by the Secretary of State or other appropriate official of each Credit Party’s jurisdiction of organization and (ii) as to the incumbency and specimen signature of each Authorized Officer executing this Amendment and any Other Document on behalf of any Credit Party and signed by another officer as to the incumbency and specimen signature of the Authorized Officer executing the certificate pursuant to this clause. Such certificates may be the same certificates delivered in connection with the closing under the Second Lien Credit Agreement.
(i) The Parent Guarantor shall have paid to Agent for the Agent and account of each Lender party to this Amendment, a consent fee equal to 0.50% of such Lender’s Commitment as of the Lenders all reasonable and documented fees, costs, and expenses owed date hereof (after giving effect to and/or incurred by the Agent and the Lenders arising in connection with effectiveness of this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, revised Schedule 1.2(a) of the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;Agreement).
(ej) Holdings All fees and the Borrowers shall have delivered to the expenses of Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries its affiliates required to be delivered pursuant paid or reimbursed at or prior to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal YearEffective Date shall have been paid in full, and (ii) an operating report prepared by all fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in connection with the Borrowers Credit Agreement and this Amendment shall have been paid in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;full.
(fk) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;a duly executed Perfection Certificate.
(gl) All proceedings taken other documents and legal matters in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the been delivered or executed or recorded, as required number of lenders under the Term Loan Facility to this Amendmentby Agent.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and first date (the Agent (at the option of Lenders and Agent“First Amendment Effective Date”) until each of on which the following conditions precedent has shall have been satisfied or waived:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Guarantor Subsidiary and each Lender listed on Schedule 2.1 hereto either (i) a counterpart of this Amendment signed on behalf of such Person or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Amendment) that such Person has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, dated the First Amendment Effective Date and attaching (i) a copy of each Organizational Document of the Borrower (or certifying that such Organizational Document of the Borrower provided on the Closing Date remains in full force and effect and without modification or amendment since the Closing Date), (ii) signature and incumbency certificates of the officer of the Borrower executing this Amendment, (iii) resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of this Amendment, certified as of the First Amendment Effective Date by such secretary or assistant secretary as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of the Borrower’s jurisdiction of organization, dated the First Amendment Effective Date or a recent date prior thereto, all in form and substance reasonably satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;Administrative Agent.
(c) The Borrowers Administrative Agent shall have delivered received a customary written opinion (addressed to the Agent each Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks and dated the First Amendment Effective Date) of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the following, in each case, in form Borrower (and substance satisfactory the Borrower hereby instructs such counsel to deliver such opinion to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Administrative Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower, dated the First Amendment Effective Date and certifying as to the accuracy of the representations and warranties set forth in Section 3 hereof.
(e) The Borrower shall have paid to the Administrative Agent and the Lenders all reasonable and documented fees, costs, fees and expenses owed due and payable on or prior to and/or incurred the First Amendment Effective Date pursuant to the Credit Documents and any other agreement entered into by the Agent Borrower and the Lenders arising Administrative Agent (in connection with this the case of expenses, to the extent invoiced at least one Business Day prior to the First Amendment and Effective Date (or such later date as is reasonably agreed by the documents and opinions executed and delivered in connection herewith and after giving effect Borrower)).
(f) At least five days prior to such payments, the funding of Loans and issuances of Letters of Credit on the Second First Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent Lenders shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto information in respect of the Borrower and each Subsidiary required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that shall have been requested in writing (which may be satisfactory by email) at least 10 days prior to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentFirst Amendment Effective Date.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon effective only if and when:
4.1 the Administrative Agent shall have received on behalf of the Lenders, this Amendment, duly executed and delivered by the Borrower, the Administrative Agent, the Requisite Lenders (or the duly executed and delivered written consent thereof), and the Agent (at the option of Lenders Subsidiary Guarantors;
4.2 Borrower and Agent) until each of the following conditions precedent has been satisfied other Loan Parties shall have received all material governmental and third-party approvals and consents (including from Gaming Authorities) required in connection with this Amendment and the transactions contemplated hereby (if any), each of which shall be in form and substance satisfactory to the Administrative Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreementfull force and effect, as amended hereby, and with respect to which all applicable waiting periods related thereto shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited have expired without any action being taken by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)any applicable authority;
(b) After giving effect to this Amendment, no Default or Event of Default 4.3 Administrative Agent shall have occurred received from each Loan Party party to an Existing Mortgage, a fully executed and be continuing;
(c) The Borrowers shall have delivered to the Agent each notarized confirmation of the following, in each casesuch Existing Mortgage, in form and substance satisfactory to the Administrative Agent and its counsel in their discretion:
(i) an executed original of this Amendmentproper form for recording in all appropriate places in all applicable jurisdictions;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) 4.4 each of the items required to have been delivered pursuant to representations and warranties contained in Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability 3 of this Amendment shall be true and correct in all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselmaterial respects; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers 4.5 Borrower shall have paid to the Administrative Agent (i) an amendment fee in immediately available funds, for the account of each Requisite Lender that has delivered its executed signature page to this Amendment, in an amount equal to 0.10% of the sum of the principal amount of such Requisite Lender’s outstanding Loans and Revolving Loan Commitments (such amounts to be determined on the Lenders Fifth Amendment Effective Date) and (ii) all other fees earned and reasonable and documented fees, costs, and expenses owed to and/or incurred by the Administrative Agent and the Lenders arising in connection with this Amendment and Amendment, including, to the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, extent invoiced on or before the funding of Loans and issuances of Letters of Credit on the Second Fifth Amendment Effective Date, and the reimbursement or other payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries reasonable out-of-pocket expenses required to be delivered pursuant reimbursed or paid by Borrower. This Amendment shall be deemed to Section 10.1.4(a)(viibe effective on the date (the “Fifth Amendment Effective Date”) on which each of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentforegoing conditions are satisfied.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon The effectiveness of the Lenders and amendments to the Agent (at Credit Agreement as set forth in Section 2 above is subject to the option of Lenders and Agent) until each satisfaction of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the first date upon on which such conditions are satisfied, precedent shall have been satisfied is referred to as the “Second Amendment Effective Date”):
(a) After giving effect to this AmendmentThe Initial First-Out Lender shall have executed a counterpart hereof and shall (or its counsel shall) have received from the Administrative Agent, the representations Arranger and warranties contained herein Bookrunner, the Borrower, each other Loan Party and each Lender a counterpart of this Amendment signed on behalf of such party (which counterparts may be delivered by facsimile or electronic transmission in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto.pdf or .tif format);.
(b) After giving effect to this AmendmentSubstantially concurrently with the occurrence of the Amendment Effective Date, no Default or Event of Default the Primoris Merger Agreement shall have occurred been executed by the parties thereto and be continuing;shall have become effective.
(c) The Borrowers Substantially concurrently with the occurrence of the Amendment Effective Date, the Forbearance Agreement shall have delivered been executed by the parties thereto and shall have become, and shall continue to be, effective in accordance with the Agent each of terms thereof, and the followingInitial First-Out Lender (or its counsel) shall have received a copy thereof, in each case, and the Forbearance Agreement shall be in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)Initial First-Out Lender.
(d) The Borrowers shall have paid to Substantially concurrently with the Agent and occurrence of the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, the Limited Forbearance Agreement, dated as of the date hereof (the “ABL Forbearance Agreement”), among Willbros United States Holdings, Inc., the Borrowers (solely for this purpose, as defined therein), the Borrower, the other persons party thereto as Guarantors (solely for this purpose, as defined therein), the lenders party thereto and Bank of America, N.A., shall have been executed by the parties thereto and shall have become, and shall continue to be, effective in accordance with the terms thereof, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
Initial First-Out Lender (eor its counsel) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificatesa copy thereof, and information that the Agent ABL Forbearance Agreement shall require, each be in form and substance satisfactory to the Agent;Initial First-Out Lender.
(e) The Initial First-Out Lender shall have executed and delivered to KKR Credit Advisors (US) LLC (“KKR Credit”) a counterpart of, and shall (or its counsel shall) have received from KKR Credit a counterpart of, the Put/Call Agreement, dated as of the date hereof (the “Put/Call Agreement”), between the Initial First-Out Lender and KKR Credit, signed on behalf of such party (which counterparts may be delivered by facsimile or electronic transmission in .pdf or .tif format).
(f) The Initial First-Out Lender (or its counsel) shall have received a certificate dated the Amendment Effective Date from a Responsible Officer of the Borrower certifying that on and as of the Amendment Effective Date, the representations and warranties of the Loan Parties contained in Section 6 below are true and correct in all material respects (provided that to the extent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall be certified to be true and correct in all respects), except to the extent any such representation and warranty relates to an earlier date, in which case such representation and warranty shall be certified to be true and correct in all material respects (provided that to the extent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall be certified to be true and correct in all respects) as of such earlier date.
(g) All proceedings taken in connection with The Initial First-Out Lender (or its counsel) shall have received a certificate dated the transactions contemplated by Amendment Effective Date from the Secretary or Assistant Secretary of each Loan Party (i) attaching each Organizational Document of such Loan Party, (ii) attaching resolutions of the Board of Directors, Board of Managers or similar governing body of such Loan Party approving and authorizing the execution, delivery and performance of this Amendment and all documentation certifying that such resolutions are in full force and other legal matters incident thereto shall be satisfactory effect as of the Amendment Effective Date and have not been amended or rescinded, (iii) attaching a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of organization, dated as of a recent date prior to the Agent in its sole Amendment Effective Date and absolute discretion; and(iv) including a customary incumbency certification.
(h) The Borrowers Initial First-Out Lender (or its counsel) shall have received (i) an opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to the prior written consent Borrower, and (ii) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Delaware counsel to the Term Loan Borrower, in each case, dated the Amendment Effective Date and addressed to the Initial First-Out Lender and in a form reasonably acceptable to the Initial First-Out Lender (or its counsel).
(i) The Administrative Agent and the required number Initial First-Out Lender shall have received a Notice of lenders under Borrowing with respect to the Term Initial First-Out Loan Facility (which shall be in the form agreed by the Initial First-Out Lender and the Borrower and shall include an exhibit setting forth the 18-week cash flow budget of the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Initial First-Out Lender). Upon the satisfaction of the conditions set forth in this AmendmentSection 4, the Initial First-Out Lender shall provide to the Borrower and the other parties hereto a written acknowledgement that the Amendment Effective Date has occurred.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent amendment and restatement of the Existing Senior Secured Credit Agreement as set forth in Section 2 hereof shall become effective on the first date (at such date being referred to as the option of Lenders and Agent“Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”)::
(a) After giving effect The Successor Administrative Agent (or its counsel) shall have received from the Borrower, the Successor Administrative Agent, the Successor Collateral Agent, the Existing Administrative Agent, the Existing Collateral Agent, each Issuing Bank, the Swingline Lender, each New Revolving Lender and each Extending Revolving Lender either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Successor Administrative Agent (which may include facsimile transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment, and the Extending Revolving Lenders shall constitute, as of the Restatement Effective Date and immediately prior to the consummation of the transactions contemplated hereunder, at least the Required Lenders under the Existing Senior Secured Credit Agreement (and the Successor Administrative Agent (or its counsel) shall have received evidence reasonably satisfactory to it confirming the foregoing).
(b) The representations and warranties contained herein and of the Borrower set forth in the Loan Agreement, as amended hereby, Section 5 hereof shall be true and correct as of the date hereof as if made on Restatement Effective Date, and the date hereofSuccessor Administrative Agent shall have received a certificate, except for such representations dated the Restatement Effective Date and warranties limited signed by their terms to a specific date (such representations and warranties being true and correct as Financial Officer of the specified date relative thereto);
(b) After giving effect to this AmendmentBorrower, no Default or Event of Default shall have occurred and be continuing;confirming the foregoing.
(c) The Borrowers Borrower shall have delivered to prepaid or repaid, or substantially simultaneously with the Agent each effectiveness of this Amendment shall prepay or repay, the entire principal amount of the followingTranche 1 Term Loans and the Tranche 2 Term Loans outstanding as of the Restatement Effective Date, in each case, in form all accrued and substance satisfactory unpaid interest thereon as of the Restatement Effective Date and all other amounts owing to or accrued for the Agent and its counsel in their discretion:
(i) an executed original account of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan AgentLenders (as defined in the Existing Senior Secured Credit Agreement) under the Existing Senior Secured Credit Agreement as of the Restatement Effective Date, and the Successor Administrative Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each shall have received evidence of the items required foregoing reasonably satisfactory to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)it.
(d) The Borrowers shall have paid to Each of the Existing Administrative Agent and the Successor Administrative Agent shall have received all fees and other amounts due and payable to it on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Senior Secured Credit Agreement or the Restated Credit Agreement.
(e) No Revolving Loans or Swingline Loans shall be outstanding under the Existing Senior Secured Credit Agreement, and the Existing Administrative Agent shall have received from the Borrower, for the account of the Revolving Lenders and Issuing Banks under the Existing Senior Secured Credit Agreement, an amount equal to all reasonable and documented the interest, commitment fees, costsletter of credit participation fees and issuing bank fronting fees accrued through the Restatement Effective Date.
(f) Each of the conditions precedent set forth in Section 4.01 of the Restated Credit Agreement shall have been satisfied. The Successor Administrative Agent shall notify the Borrower, and expenses owed to and/or incurred by the Agent Issuing Banks and the Revolving Lenders arising in connection with this Amendment and of the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This All of the provisions of this Amendment, excepting Section 4, shall be effective immediately upon the delivery to the Agent of this Amendment executed by all parties hereto (including, without limitation, the parties to the Guarantor Consent attached hereto as Exhibit A); provided, however, that (i) the provisions of Section 2 shall not be binding upon effective until the Lenders Senior Notes and the documents related thereto (collectively, the "Senior Note Documents") have (with the consent of the holders of the Senior Notes) been terminated and replaced with senior notes issued by CAM and other documents related thereto executed by CAM and its affiliates and all other relevant parties on substantially the same terms as the Senior Notes and in form and substance acceptable to the Agent and the Required Banks in their sole discretion (at the option "CAM Senior Notes" and, together with the related senior note documents, the "CAM Senior Note Documents"), which CAM Senior Note Documents shall specifically allow CAM and its affiliates to consummate the Reorganization and conduct the Permitted Activities; and (ii) the provisions of Lenders Sections 3, 5 and Agent6 shall not become effective until the satisfaction (or written waiver approved and executed by the Agent and the Required Banks, in their respective discretion) until of each of the following conditions precedent has been satisfied conditions:
(a) The Reorganization Date shall have occurred by the Reorganization Deadline and CAM shall have given the Agent written notice of the Reorganization Date by the Reorganization Deadline.
(b) The Agent shall have received the Replacement Notes, duly executed by CAM.
(c) The Agent shall have received the CTI Guaranty, duly executed by CTI.
(d) The Agent shall have received executed originals of the Dividend Note and the Existing Debt Notes (and all other then existing Intercompany Notes), all duly endorsed (with recourse) by the holders thereof in favor of the Collateral Agent.
(e) The Agent shall have received such additional Security Documents or modifications of the existing Security Documents as may be requested by the Agent, duly executed by the appropriate Credit Parties (and, if appropriate, the Agent and the Collateral Agent), in each case in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):Agent.
(af) After giving The Agent shall have received evidence (satisfactory to the Agent and the Required Banks) that the Senior Note Documents have been replaced by the CAM Senior Note Documents and that the CAM Senior Note Documents are in full force and effect and that no default or event that with notice or the passage of time would constitute default shall have occurred thereunder.
(g) The Agent shall have received an amendment to the Intercreditor Agreement, duly executed by all parties to the Intercreditor Agreement reflecting the Reorganization (and approved in form and substance by the Agent and the Required Banks). The Intercreditor Agreement must continue to provide that all of the Credit Parties' obligations to the holders of the Senior Notes and to the Banks shall be maintained on a pari passu basis.
(h) The Agent shall have received a certificate of the Secretary or an Assistant Secretary of each of the Credit Parties, in form and substance satisfactory to the Agent, with respect to (i) the certificate of incorporation and by-laws of such Credit Party, (ii) the resolutions authorizing the Reorganization and the execution, delivery and performance of this Amendment, the representations CTI Guaranty, the Replacement Notes and warranties contained herein all documents executed and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each in connection with any of the followingforegoing (collectively, the "Amendment Documents"), and (iii) the incumbency of officers of such Credit Party authorized to execute and deliver the Amendment Documents.
(i) The Agent shall have received a certificate of good standing, issued as of a recent date, with respect to each Credit Party from its jurisdiction of incorporation (and, with respect to each Credit Party whose name has changed as recited in Section 1 hereof, such certificate shall reflect the new name of such Credit Party).
(j) The Agent shall have received a certificate duly executed by the chief financial officer of the Parent attesting to the solvency of the Credit Parties, in each caseform and substance satisfactory to the Agent.
(k) The Agent shall have received an opinion of counsel to the Credit Parties regarding (i) the consummation of the Reorganization, (ii) the due authorization and execution of the Amendment Documents, (iii) the enforceability of the Amendment Documents, (iv) the perfection of the security interests in the Capital Securities of the Parent's Subsidiaries and in the Intercompany Notes, and (v) such other matters as may be requested by the Agent or the Required Banks, all in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)Required Banks.
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(fl) The Agent shall have received such other documents, corporate resolutions, corporate certificates, instruments and information that opinions as the Agent shall require, each in form and substance satisfactory to the Agent;may reasonably request.
(gm) All proceedings taken The Agent shall have received all fees and expenses incurred by the Agent in connection with negotiation, preparation and execution of the transactions contemplated by this Amendment Documents and all documentation the consummation of the Reorganization including, without limitation, the legal fees and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent out of pocket expenses of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentAgent.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Sixth Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Sixth Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect the Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, each Swingline Lender and each Lender whose name appears on Schedule 2.01 hereto (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment, the representations and warranties contained herein and in the Loan Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Sixth Restatement Effective Date) of each of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the followingBorrowers, (ii) ▇▇▇▇ ▇. ▇▇▇▇, Vice President, Group General Counsel and Secretary of the Company and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, English counsel for Centaur Services Limited, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iic) an amendment the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Fee Letterorganization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(iiid) the Administrative Agent shall have received a jointcertificate, irrevocable instruction letter from dated the Borrower, the Term Loan Agent, Sixth Restatement Effective Date and the Agent to the Crack Spread Hedging Counterparty, countersigned signed by the Crack Spread Hedging CounterpartyPresident and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming the accuracy of the representations and warranties set forth in Section 3;
(ive) the Administrative Agent and each of the items required to Lender shall have been delivered pursuant to Section 3(a) above;
(v) such received all documentation and other information as requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Agent to enable USA Patriot Act, the Agent to calculate Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and implement Terrorist Financing Act (Canada) and the Earnout Reserve;
Anti-terrorism Act (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more Canada), not fewer than three five Business Days prior to the Second Amendment Closing Sixth Restatement Effective Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiif) a favorable opinion the Borrowers shall have paid, or substantially concurrently with the satisfaction of counsel with respect the other conditions precedent set forth in this Section shall pay, (i) the principal and all interest accrued on any outstanding Borrowings, and all fees referred to in Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewithSixth Restatement Effective Date under the Fifth Restated Credit Agreement, and such (ii) any other matters amounts owing to, or accrued under the Fifth Restated Credit Agreement for the account of any Lender under the Fifth Restated Credit Agreement that will not continue as may be reasonably required by a Lender under the Agent and its counselSixth Restated Credit Agreement; and
(ixg) a Subordination Agreement by the Administrative Agent and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers each Lender shall have paid received all fees and other amounts due and payable on or prior to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising Sixth Restatement Effective Date in connection with this Amendment Agreement, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(h) the amendment to (i) the February Term Loan Agreement and (ii) the November Term Loan Agreement, each dated on or prior to the Sixth Restatement Effective Date (together, the “Term Loan Amendments”) shall have, or substantially concurrently with the Sixth Restatement Effective Date shall, become effective. The Administrative Agent shall have received a copy of each Term Loan Amendment and, in each case, all certificates, opinions and other documents delivered thereunder, certified by the President and Chief Executive Officer, a Vice President or a Financial Officer of the Company, as being complete and correct. The Administrative Agent shall notify the Company and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, Lenders of the funding of Loans and issuances of Letters of Credit on the Second Amendment Sixth Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this AmendmentThis Amendment (except for Sections 2, the representations 3, 4, 5, 6 and warranties contained herein and in the Loan Agreement, as amended hereby, 7) shall be true and correct as of the date hereof as if made become effective on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b"Effective Date") After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretionwhen:
(i) an executed original of this Amendment;the Company and the Required Investors shall have signed a counterpart hereof (whether the same or different counterparts), and
(ii) an amendment the Company shall have paid all fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorizationpreparation, execution and enforceability or delivery of this Amendment and all documents executed other unpaid fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection herewithwith the Purchase Agreement to the extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, and such other matters as may be reasonably required by however, that nothing in this Amendment shall limit the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf generality of Section 12.4 of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Purchase Agreement”).
(db) The Borrowers shall have paid to the Agent Each of Sections 2, 3, 4, 5, 6 and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with 7 of this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit shall separately become effective on the Second Amendment date (each, a "Consent Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e") Holdings and the Borrowers shall have delivered to the Agent and the Lenderswhen:
(i) the projections and consolidated operating budget Investors shall have received a copy of a duly executed amendment or amendments of the Borrowers and their subsidiaries required Senior Credit Agreement (a) consenting to be delivered pursuant to the actions contemplated by Section 10.1.4(a)(vii2, 3, 4, 5 or 6 hereof, as the case may be, or (b) of the Loan Agreement providing for the 2009 Fiscal Yearsubstantive equivalent of Section 7 hereof; provided that in each case each such amendment or amendments shall be in a form reasonably satisfactory to the Required Investors and provided, and further, that the reasonable satisfaction of each such amendment or amendments shall be acknowledged in writing by the Required Investors, and
(ii) an operating report prepared the Company shall have paid all fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Borrowers Investors in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) connection with or relating to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such review of documents in connection with a Consent Effective Date and all other documents, corporate resolutions, corporate certificates, unpaid fees and information that expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken Investors in connection with the transactions contemplated by Purchase Agreement to the extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to limit the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent generality of Section 12.4 of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentPurchase Agreement.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect to this Amendmentthe Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, the representations Swingline Lender and warranties contained herein and in each Person whose name appears on Schedule 2.01 hereto, (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Loan Administrative Agent (which may include facsimile or other electronic imaging means of a signed signature page of this Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent each Administrative Agent, the Issuing Banks, the Swingline Lender and the Post-Effectiveness Lenders and dated the Restatement Effective Date) of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrowers and (ii) ▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the followingCompany, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(c) the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in their discretion:form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming (i) an executed original the accuracy of this Amendmentthe representations and warranties set forth in Section 3 hereof and (ii) confirming the satisfaction of the condition set forth in clause (e) below;
(iie) an amendment to the Fee LetterGuarantee Requirement shall be satisfied;
(iiif) a jointthe Administrative Agent and each Lender shall have received all documentation and other information requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, irrevocable instruction letter from including the BorrowerUSA PATRIOT Act, the Term Loan AgentCriminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the Agent to the Crack Spread Hedging CounterpartyAnti-terrorism Act (Canada), countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more not fewer than three five Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection the Borrowers shall have paid, or substantially concurrently with the transactions contemplated by satisfaction of the other conditions precedent set forth in this Amendment Section shall, pay (i) all accrued but unpaid fees referred to in Section 2.12(a) and 2.12(b)(i) under the Existing Credit Agreement, as well as all documentation other amounts owing to, or accrued for account under the Existing Credit Agreement for the account of, any Lender under the Existing Credit Agreement whose name is not set forth on Schedule 2.01 hereto and other legal matters incident thereto shall be satisfactory to (ii) all accrued but unpaid interest on the Agent in its sole and absolute discretionExisting Canadian Prime Rate Borrowings; and
(h) The Borrowers the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the prior written consent Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document. The Administrative Agent shall notify the Company and the Lenders of the Term Loan Agent Restatement Effective Date, and the required number of lenders under the Term Loan Facility to this Amendmentsuch notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Third Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Third Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect to this Amendmentthe Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, the representations Swingline Lender and warranties contained herein and in each Lender whose name appears on Schedule 2.01 hereto (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Loan Administrative Agent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent each Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Third Restatement Effective Date) of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrowers, (ii) ▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the followingCompany, (iii) ▇▇▇▇▇▇ ▇▇▇, counsel for the Irish Borrower and (iv) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Canadian Borrowers, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iic) an amendment the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Fee Letterorganization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(iiid) the Administrative Agent shall have received a jointcertificate, irrevocable instruction letter from dated the Borrower, the Term Loan Agent, Third Restatement Effective Date and the Agent to the Crack Spread Hedging Counterparty, countersigned signed by the Crack Spread Hedging CounterpartyPresident and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming the accuracy of the representations and warranties set forth in Section 3;
(ive) the Administrative Agent and each of the items required to Lender shall have been delivered pursuant to Section 3(a) above;
(v) such received all documentation and other information as requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Agent to enable USA PATRIOT Act, the Agent to calculate Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and implement Terrorist Financing Act (Canada) and the Earnout Reserve;
Anti-terrorism Act (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more Canada), not fewer than three five Business Days prior to the Second Amendment Closing Third Restatement Effective Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiif) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to paid, or substantially concurrently with the Agent and satisfaction of the Lenders
other conditions precedent set forth in this Section shall pay, (i) all interest on outstanding Borrowings, and all fees referred to in Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the projections and consolidated operating budget of Third Restatement Effective Date under the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal YearSecond Restated Credit Agreement, and (ii) an operating report prepared by any other amounts owing to, or accrued under the Borrowers in Second Restated Credit Agreement for the ordinary course of business for each of January 2009 and February 2009 containing account of, any Lender under the information set forth on Schedule 10.1.4(a)(ii) to Second Restated Credit Agreement that will not continue as a Lender under the Loan Third Restated Credit Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;; and
(g) All proceedings taken the Administrative Agent and each Lender shall have received all fees and other amounts due and payable on or prior to the Third Restatement Effective Date in connection with the transactions contemplated by this Third Amendment and Restatement Agreement, including, to the extent invoiced, reimbursement or payment of all documentation out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other legal matters incident thereto Loan Document. The Administrative Agent shall notify the Company and the Lenders of the Third Restatement Effective Date, and such notice shall be satisfactory to the Agent in its sole conclusive and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied satisfied, as determined by Agent, before this Amendment is effective:
(a) Agent shall have received this Amendment, fully executed by each Credit Party, each New Lender and Lenders constituting Required Lenders;
(b) Agent shall have received, in form and substance satisfactory to Agent a Revolving Credit Note for each New Lender, duly executed by the Borrowers;
(c) Agent shall have received, in form and substance satisfactory to Agent: (i) that certain Fee Letter among Borrowers, Agent and Santander Bank, National Association dated as of the date hereof, duly executed by the parties thereto, (ii) that certain Fee Letter among Borrowers, Agent and Branch Banking and Trust Company dated as of the date hereof duly executed by the parties thereto (the date upon which such conditions are satisfiedfee letters described in the foregoing clauses (i) and (ii), collectively, the “Second Amendment Effective Date“ New Lender Fee Letters”):), and (iii) payment of all fees described in the New Lender Fee Letters;
(ad) After giving effect Each of the representations and warranties made by any Credit Party in or pursuant to this Amendment, the representations Credit Agreement and warranties contained herein and in the Loan Agreement, as amended hereby, Other Documents shall be true and correct in all material respects (or, if such representation and warranty is, by its terms, limited by materiality (including a Material Adverse Effect), then such representation and warranty shall be true in all respects) on and as of the date hereof as if made on and as of the date hereof (except to the extent any such representation or warranty specifically relates to a certain prior date);
(e) Agent shall have received (i) a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the board of directors, management committee, managing member, manager or general partner, as applicable, of each Credit Party authorizing (as applicable) the execution, delivery and performance of this Amendment and the Other Documents contemplated to be delivered by such Credit Party in connection herewith, certified by an Authorized Officer of each Credit Party as of the date hereof, except for and, such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the specified date relative thereto)of such certificate and (ii) a certificate of an Authorized Officer of each Credit Party, dated the date hereof, as to the incumbency and signature of the officers of each Credit Party, as applicable, executing this Amendment and the Other Documents contemplated to be delivered by such Credit Party in connection herewith, together with evidence of the incumbency of such Authorized Officer, in each case certified by an Authorized Officer of each Credit Party as of the date hereof;
(bf) After giving effect to this Amendment, no Default or Event of Default Agent shall have occurred and be continuing;
(c) The Borrowers shall have delivered to received the Agent each of the following, in each caseexecuted legal opinion, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, which shall cover such matters incident to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agenttransactions contemplated by this Amendment as Agent may reasonably require, and the Agent Credit Parties hereby authorize and direct such counsel to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required deliver such opinions to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counselLenders; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken other documents and legal matters in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the been delivered or executed or recorded, as required number of lenders under the Term Loan Facility to this Amendmentby Agent.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made become effective on the date hereof, except for such representations (the "Effective Date") when:
(i) the Company and warranties limited by their terms to the Required Investors shall have signed a specific date counterpart hereof (such representations and warranties being true and correct as whether the same or different counterparts),
(ii) the Investors shall have received a copy of a duly executed amendment of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each caseSenior Credit Agreement, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;Required Investors,
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent Investors shall have received such other documentsa copy of a duly executed amendment of the Sale and Leaseback Documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;Required Investors,
(giv) All proceedings taken in connection with the transactions contemplated by the ETI Credit Documents and the ETI Stock Purchase Documents shall have been consummated, in form, substance and upon timing satisfactory to the Required Investors,
(v) the Company shall have delivered to the Investors true and correct copies of the ETI Credit Documents and the ETI Stock Purchase Documents, in form and substance satisfactory to the Required Investors,
(vi) the Company shall have delivered to the Investors true and correct copies of the 2003 Warrant Agreement, in form and substance satisfactory to the Required Investors,
(vii) the Company shall have delivered to each Investor a duly executed 2003 Warrant (issued to such Investor), in form and substance satisfactory to the Required Investors,
(viii) the Company shall have delivered to the Investors true and correct copies of an acknowledgement to the Registration Rights Agreement, in form and substance satisfactory to the Required Investors,
(ix) the Company shall have delivered to the Investors a copy of a letter from [________] in form and substance reasonably acceptable to the Required Investors confirming (i) [______]'s willingness to enter into a Supply Agreement with the Company and ETI as provided in the ETI Credit Agreement and (ii) the Company currently has nominally equivalent [_____] payment terms,
(x) the Investors shall have received a written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., counsel to the Company, in form and substance satisfactory to the Required Investors, and
(xi) the Company shall have paid all fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the preparation, execution or delivery of this Amendment and all documentation other unpaid fees and other legal matters incident thereto shall be satisfactory expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in [_____] confidential treatment requested. connection with the Purchase Agreement to the Agent extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in its sole and absolute discretion; and
(h) The Borrowers this Amendment shall have received limit the prior written consent generality of Section 12.4 of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentPurchase Agreement.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (become effective at the option of Lenders time and Agenton the date (the “Eighth Amendment Effective Date”) until each of upon which the following conditions precedent has been satisfied are satisfied:
(i) the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment from the Borrower, each of the other Loan Parties and each Incremental B-2020 Term Lender;
(ii) the Administrative Agent shall have received the executed legal opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, special counsel to the Loan Parties, in a form reasonably acceptable to the Administrative Agent;
(iii) the Administrative Agent shall have received a solvency certificate executed by a senior financial officer of the Borrower in substantially the form of Annex I to Exhibit C of the Commitment Letter;
(iv) the Administrative Agent shall have received:
(a) a copy of the resolutions or equivalent action, in form and substance reasonably satisfactory to the Agent (Administrative Agent, of the date upon which such conditions are satisfiedBoard of Directors of each Loan Party authorizing, the “Second execution, delivery and performance of this Agreement, certified by the secretary, an assistant secretary or other authorized representatives of such Loan Party as of the Eighth Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, which certificate shall be true in a form reasonably satisfactory to the Administrative Agent and correct shall state that the resolutions or other action thereby certified have not been amended, modified (except as of the date hereof as if made on the date hereofany later such resolution or other action may modify any earlier such resolution or other action), except for such representations revoked or rescinded and warranties limited by their terms to a specific date (such representations are in full force and warranties being true and correct as of the specified date relative thereto)effect;
(b) After giving effect a certificate of each Loan Party, dated as of the Eighth Amendment Effective Date, as to the incumbency and signature of the officers or other authorized signatories of such Loan Party executing this AmendmentAmendment executed by a Responsible Officer or other authorized representative and the secretary, no Default any assistant secretary or Event another authorized representative of Default shall have occurred and be continuingsuch Loan Party;
(c) The Borrowers shall have delivered to the Agent each copies of the followingcertificate or articles of incorporation and by-laws (or other similar governing documents serving the same purpose) of each Loan Party, certified as of the Eighth Amendment Effective Date as complete and correct copies thereof by the secretary, an assistant secretary or other authorized representative of such Loan Party; and
(d) a certificate executed by a senior financial officer of the Borrower, certifying compliance with the financial test set forth in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
clause (i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) abovedefinition of “Maximum Incremental Facilities Amount” in the Credit Agreement;
(v) such information as requested by a customary borrowing notice shall have been delivered to the Agent to enable the Agent to calculate and implement the Earnout ReserveAdministrative Agent;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments other condition precedent set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached Annex I hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to been satisfied (or waived by each party hereto that is not the Agent Borrower). The Incremental Arrangers shall promptly notify the Borrower and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by of the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Eighth Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Term Loan Credit Agreement (US Foods Holding Corp.)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Amended WC Term Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Second Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect to this Amendmentthe Administrative Agent shall have received from Ultimate Parent, Intermediate Parent, the representations Borrowers and warranties contained herein each other Loan Party, the Lenders constituting at least the Required Lenders under the Existing WC Term Credit Agreement and in the Loan Administrative Agent (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include transmission by facsimile or other electronic imaging (e.g., a “pdf” or “tif”) of a signed signature page of this Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred received a certificate, dated the Second Restatement Effective Date and be continuing;executed by a Responsible Officer of Ultimate Parent, confirming the accuracy of the representations and warranties set forth in Section 3 hereof; and
(c) The Borrowers the Administrative Agent, each Lender and each of ▇.▇. ▇▇▇▇▇▇ Securities LLC, Mizuho Bank, Ltd. and ▇▇▇▇▇ Fargo Securities, LLC (collectively, the “Amendment Lead Arrangers”) shall have delivered to the Agent each of the followingreceived, in each caseimmediately available funds, in form all fees and substance satisfactory to the Agent other amounts due and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default payable on or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Restatement Effective Date in connection with this Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect including, to the due authorizationextent invoiced, execution reimbursement or payment of all reasonable and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
documented out-of-pocket expenses (ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all including reasonable and documented fees, costscharges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under the Existing WC Term Credit Agreement or as separately agreed by Ultimate Parent and the Amendment Lead Arrangers. The Administrative Agent shall promptly notify, and expenses owed to and/or incurred by the Agent in writing, Ultimate Parent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Sources: Amended and Restated Wc Term Loan Credit and Guaranty Agreement (Actavis PLC)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and the Agent (at the option of Lenders and Agent) until each of date the following conditions precedent has been satisfied are satisfied, each in form and substance satisfactory acceptable to the Agent (the date upon which such conditions are satisfieddate, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this AmendmentAmendment duly executed and delivered by the Borrowers, the representations Lenders party hereto and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)Agent;
(b) After giving effect Agent shall have received a Borrowing Base Certificate (and all supporting reports as Agent may require) prepared as of the November 30, 2024;
(c) Agent shall have received a payoff letter regarding all existing Debt of Credit Parties owing to this AmendmentWhitehawk Capital Partners, LP (“Whitehawk”) and the lenders under in connection with that certain Credit Agreement, dated as of the Closing Date, by and among Borrowers, the other Credit Parties party thereto, the Lenders and Whitehawk, as Agent;
(i) All conditions precedent to the effectiveness of the Term Loan Credit Agreement and the other Term Loan Debt Documents (as applicable), on terms reasonably acceptable to Agent, shall have been satisfied or waived by the Term Loan Lenders in accordance with the Term Loan Credit Agreement, (ii) Term Loan Agent, on behalf of the Term Loan Lenders, shall have executed and delivered the Intercreditor Agreement, which shall be in form and substance reasonably satisfactory to Agent, (iii) Agent shall have received fully-executed copies of the Term Loan Debt Documents, the terms and conditions of which shall be reasonably acceptable to Agent, and (iv) Borrowers shall have received (or will receive concurrently with the funding of the Loans on the Closing Date) at least $40,000,000 of gross proceeds of the Term Loan Debt funded by the Term Loan Lenders in accordance with the Term Loan Debt Documents;
(e) no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to exist at the Agent each of time of, or immediately result from, the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original consummation of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ixf) a Subordination the representations and warranties of each Credit Party in the Credit Agreement by and among the Agent (other Loan Documents shall be true and correct in all material respects on behalf of the Lenders), the Borrowers, Holdingsdate of, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Creditafter giving effect to, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment (provided that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and the documents and opinions executed and delivered in connection herewith and correct (after giving effect to such paymentsqualification) in all respects on such effective date), the funding of Loans except for those representations and issuances of Letters of Credit on the Second Amendment Effective Datewarranties that expressly relate to an earlier date, and the payment by the Borrowers of all trade payables aged in excess of their due dateswhich case, Availability shall be greater than zero;
(e) Holdings and the Borrowers they shall have delivered to the Agent been true and the Lenders
(i) the projections and consolidated operating budget correct in all material respects as of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentdate.
Appears in 1 contract
Sources: Credit Agreement (BRC Inc.)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Fourth Restated Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Fourth Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect the Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, each Swingline Lender and each Lender whose name appears on Schedule 2.01 hereto (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment, the representations and warranties contained herein and in the Loan Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred and be continuing;
received a favorable written opinion (c) The Borrowers shall have delivered addressed to the Agent Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Fourth Restatement Effective Date) of each of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the followingBorrowers and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, Group General Counsel and Secretary of the Company, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this AmendmentAdministrative Agent;
(iic) an amendment the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Fee Letterorganization, existence and good standing of each Borrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(iiid) the Administrative Agent shall have received a jointcertificate, irrevocable instruction letter from dated the Borrower, the Term Loan Agent, Fourth Restatement Effective Date and the Agent to the Crack Spread Hedging Counterparty, countersigned signed by the Crack Spread Hedging CounterpartyPresident and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming the accuracy of the representations and warranties set forth in Section 3;
(ive) the Administrative Agent and each of the items required to Lender shall have been delivered pursuant to Section 3(a) above;
(v) such received all documentation and other information as requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Agent to enable USA PATRIOT Act, the Agent to calculate Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and implement Terrorist Financing Act (Canada) and the Earnout Reserve;
Anti-terrorism Act (vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more Canada), not fewer than three five Business Days prior to the Second Amendment Closing Fourth Restatement Effective Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiif) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to paid, or substantially concurrently with the Agent and satisfaction of the Lenders
other conditions precedent set forth in this Section shall pay, (i) the projections principal and consolidated operating budget of all interest accrued on any outstanding Borrowings, and all fees referred to in Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of Fourth Restatement Effective Date under the Loan Agreement for the 2009 Fiscal YearThird Restated Credit Agreement, and (ii) an operating report prepared by any other amounts owing to, or accrued under the Borrowers in Third Restated Credit Agreement for the ordinary course of business for each of January 2009 and February 2009 containing account of, any Lender under the information set forth on Schedule 10.1.4(a)(ii) to Third Restated Credit Agreement that will not continue as a Lender under the Loan Fourth Restated Credit Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;; and
(g) All proceedings taken the Administrative Agent and each Lender shall have received all fees and other amounts due and payable on or prior to the Fourth Restatement Effective Date in connection with the transactions contemplated by this Fourth Amendment and Restatement Agreement, including, to the extent invoiced, reimbursement or payment of all documentation out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other legal matters incident thereto Loan Document. The Administrative Agent shall notify the Company and the Lenders of the Fourth Restatement Effective Date, and such notice shall be satisfactory to the Agent in its sole conclusive and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon effective only if and when:
(a) Receipt by the Lenders and the Administrative Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied following, each in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):Administrative Agent:
(ai) After giving effect to counterparts of this Amendment, executed by (A) Borrower and each Loan Party and (B) the Swing Line Lender, the Issuing Bank and the Required Lenders, together with fully executed copies of any other amendments to, or reaffirmation agreements with respect to, any of the Loan Documents as the Administrative Agent or the Collateral Agent may request to protect, maintain or perfect the security interests or other rights of the Collateral Agent and the other Secured Parties contemplated thereby or to make conforming changes in such documents to reflect the amendments and other transactions contemplated hereby. By executing this Amendment, each Consenting Lender authorizes and instructs the Administrative Agent and the Collateral Agent to enter into any such amendments and reaffirmation agreements on such Consenting Lender’s behalf;
(ii) such endorsements and/or confirmations to the Collateral Agent’s title policies in respect of the Mortgaged Properties or a commitment to issue such endorsements and/or confirmations as may be reasonably requested by the Administrative Agent;
(iii) legal opinions from counsel to the Loan Parties, dated as of the Effective Date;
(iv) such corporate records, lien searches and documents from public officials as the Administrative Agent may require;
(v) a certificate signed by a responsible officer of Borrower certifying to matters as the Administrative Agent may request; and
(vi) such other documents and evidence as are customary for transactions of the type contemplated by this Amendment, as the Administrative Agent may request.
(b) each of the representations and warranties contained herein and in the Loan Agreement, as amended hereby, Section 3 of this Amendment shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuingin all respects;
(c) The Borrowers shall have delivered to the Agent Borrower and each of the followingother Loan Parties shall have received all material governmental and third-party approvals and consents (including from Gaming Authorities) required in connection with this Amendment and the transactions contemplated hereby (if any), in each case, of which shall be in form and substance satisfactory to the Administrative Agent and its counsel in their discretion:
(i) an executed original of this Amendmentfull force and effect, and with respect to which all applicable waiting periods related thereto shall have expired without any action being taken by any applicable authority;
(iid) after giving effect to this Amendment and the transactions contemplated hereby, no event shall have occurred and be continuing or will result therefrom that would constitute a Default or an amendment to the Fee LetterEvent of Default;
(iiie) a jointBorrower shall have permanently reduced the Revolving Loan Commitments to an aggregate amount no greater than $375,000,000 and, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterpartyextent any repayment of Revolving Loans is required as a result of such reduction, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to Borrower shall have been delivered pursuant to Section 3(a) above;
(v) repaid such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve Revolving Loans in accordance with the Loan terms of the Credit Agreement, as amended hereby;
(viiif) a favorable opinion the Administrative Agent shall have received all of counsel with respect to the due authorization, execution Administrative Agent’s and enforceability Collateral Agent’s reasonable costs and expenses as described in subsection 10.2 of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required the Credit Agreement incurred by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Administrative Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Collateral Agent and the Lenders arising in connection with this Amendment and the documents and opinions transactions related thereto, and any fees separately agreed upon by Borrower and the Administrative Agent; and
(g) Borrower shall have paid to the Administrative Agent (i) an amendment fee in immediately available funds, for the account of each Consenting Lender that has delivered its executed signature page to this Amendment on or prior to (x) in the case of Term Loan Lenders 5:00 p.m., New York City time, on January 25, 2010 and delivered (y) in connection herewith the case of Revolving Lenders 5:00 p.m., New York City time, on January 27, 2010 (in each case, the time of such delivery to be determined by the Administrative Agent in its sole discretion), in an amount equal to 0.25% of the sum of the principal amount of such Consenting Lender’s outstanding Loans and Revolving Loan Commitments (such amounts to determined on the Effective Date after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall and termination to be greater than zero;
made pursuant to clause (e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(iabove) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared all other fees earned and reasonable expenses incurred by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Administrative Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with this Amendment, including, to the transactions contemplated extent invoiced on or before the Effective Date, reimbursement or other payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by Borrower. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions are satisfied; provided that this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to deemed null and void unless the Agent in its sole and absolute discretionEffective Date occurs by March 1, 2010; and
(h) The Borrowers provided further that notwithstanding the foregoing, on the Effective Date Section 2.2 hereof shall have received the prior written consent be applied retroactively as of the Term Loan Agent February 2, 2010. Borrower and the required number other Loan Parties acknowledge and agree that once paid, no fee described in Section 4(g) above, nor any part thereof, (i) shall be refundable under any circumstances or (ii) shall be applied to, or shall be deemed to reduce, the amount of lenders any other fee or obligation of Borrower or the other Loan Parties under the Term Credit Agreement or the other Loan Facility Documents (either prior to, or after, giving effect to this Amendment).
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding effective upon the Lenders and the Agent (at the option date of Lenders and Agent) until each satisfaction of the following conditions precedent has been satisfied precedent:
(a) Agent shall have received this Amendment executed by the Credit Parties;
(b) Agent shall have received updates to the disclosure schedules to the Credit Agreement with respect to Joining Guarantors, attached hereto as Exhibit A, in form and substance acceptable to Agent;
(c) Agent shall have received a pledge agreement, in form and substance acceptable to Agent, executed by Holdings in favor of Agent for the Equity Interests of each Joining Guarantor;
(d) Agent shall have received a perfection certificate for Joining Guarantors, in form and substance acceptable to Agent, executed by the Credit Parties;
(e) Agent shall have received a Certificate of Beneficial Ownership, in form and substance acceptable to Agent, executed and delivered to Agent and Lenders for each Borrower, and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act;
(f) Agent shall have received the executed legal opinion of counsel in form and substance satisfactory to Agent which shall cover such matters incident to the Agent (the date upon which such conditions are satisfiedtransactions contemplated by this Amendment, the “Second Other Documents and related agreements as Agent may reasonably require and the Credit Parties hereby authorizes and directs such counsel to deliver such opinions to Agent and Lenders;
(g) Agent shall have received in form and substance satisfactory to Agent, certificates evidencing the addition of Joining Guarantors as insured parties to the other Credit Parties’ casualty and liability insurance policies;
(h) Agent shall have received UCC searches, Federal and State tax lien searches, and other Lien searches run against the names of the Joining Guarantors and any previous, alternate and fictitious names of the Joining Guarantors, as applicable, showing no existing security interests in or Liens on the Collateral other than Permitted Encumbrances and other Liens permitted by the Agent;
(i) Agent shall have received a certificate of the corporate secretary or other authorized officer of each Credit Party, in form and substance acceptable to Agent, dated as of the Third Amendment Effective Date”):
, which shall certify (i) copies of resolutions in form and substance satisfactory to Agent, of the board of directors (or other equivalent governing body, member or partner) of Holdings and each Joining Guarantor authorizing, as applicable, the execution, delivery and performance of this Amendment and each Other Document delivered in connection herewith to which such Credit Party is a party (including authorization of the joinder of Joining Guarantors to the Credit Agreement and each Other Document as a Guarantor on a joint and several basis with all other Guarantors as provided for in the Credit Agreement, the Closing Date Guaranty and the Other Documents and of Joining Guarantors’ grant of the security interests in and liens upon its Collateral to secure the Obligations (and such certificate shall state that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate), (ii) the incumbency and signature of the authorized officers of each Credit Party authorized to execute this Amendment and the Other Documents delivered in connection herewith to which it is a party, (iii) (a) After giving with respect to Joining Guarantors, copies of each Joining Guarantor’s certificate of incorporation certified by the Secretary of State of the State of New York and bylaws in effect on the date hereof, complete with all amendments thereto and (b) with respect to Borrowers and HT, either (1) a certification that the certificates or articles of incorporation or charter, as applicable, and the bylaws previously delivered to Agent have not been amended, modified or rescinded in any way since such delivery and remain in full force and effect as of the date hereof or (2) to the extent of any amendments or modifications since last delivered to Agent, certificates or articles of incorporation or charter, as applicable, certified by the Secretary of State or other appropriate official of the applicable Credit Party’s jurisdiction of formation and bylaws, as in effect on the date hereof, complete with all amendments thereto, and (iv) with respect to Joining Guarantors, the good standing (or equivalent status) of each Joining Guarantor in its jurisdiction of organization and each applicable jurisdiction where the conduct of each Joining Guarantor’s business activities or the ownership of its properties necessitates qualification, as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated as of a recent date, issued by the Secretary of State or other appropriate official of each such jurisdiction;
(j) Agent shall have received and reviewed to its satisfaction the execution version of the Joinder to Term Loan Credit and Security Agreement and Other Documents, dated as of the date hereof, executed by Term Loan Agent and the Credit Parties (the “Term Loan Joinder”) and all material documents, instruments and agreements to the executed and delivered in connection therewith, and all conditions precedent to the effectiveness of the Term Loan Joinder shall have been satisfied;
(k) Each document (including any Uniform Commercial Code financing statements) required by this Amendment, any related agreement or under law or reasonably requested by the Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;
(l) Agent shall have received such other agreements, instruments and information requested by Lender, in form and substance acceptable to Agent;
(m) All of the representations and warranties contained herein and in the Loan Agreement, as amended hereby, this Amendment shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);in all material respects; and
(bn) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Hudson Technologies Inc /Ny)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the The following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent satisfied, as determined by Agent, before this Amendment is effective (the date upon which of such conditions are satisfiedeffectiveness, the “Second Amendment Effective Date”):
(a) After giving effect to Agent shall have received this Amendment, fully executed by each Credit Party, Agent and Lenders constituting Required Lenders.
(b) Agent shall have received a closing certificate signed by an Authorized Officer of each Credit Party dated as of the Effective Date stating that each of the representations and warranties contained herein and set forth in the Loan Agreement, as amended hereby, shall be Section 3 of this Amendment are true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;date.
(c) The Borrowers Agent shall have received a certificate of an Authorized Officer of each Credit Party dated as of the Effective Date certifying (i) to the effect that (A) attached thereto is a true and complete copy of the Organizational Documents of such Credit Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative, certifying that such Organizational Documents have not been amended since the Closing Date, (B) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Credit Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such resolutions are in full force and effect or in the alternative, certifying that the resolutions delivered to the Agent each on the Closing Date by such Credit Party have not been modified, rescinded or amended, and there are no plans to modify rescind or amend, and that such previously delivered resolutions are in full force and effect and (C) attached thereto is a true and complete copy of the following, in good standing certificates for each case, in form and substance satisfactory Credit Party dated not more than thirty (30) days prior to the Agent Effective Date, issued by the Secretary of State or other appropriate official of each Credit Party’s jurisdiction of organization and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment as to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, incumbency and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer specimen signature of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of Authorized Officer executing this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (any Other Document on behalf of any Credit Party and signed by another officer as to the Lenders), the Borrowers, Holdings, incumbency and one or more Affiliates specimen signature of the Borrowers or Holdings that are obligated Authorized Officer executing the certificate pursuant to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)this clause.
(d) The Borrowers Parent Guarantor shall have paid to the Agent and for the Lenders all reasonable and documented feesaccount of each Applicable Lender (as defined below), costs, and expenses owed a consent fee equal to and/or incurred by 0.15% of such Applicable Lender’s Commitment as of the Agent and the Lenders arising in connection with this Amendment and the documents and opinions date hereof. “Applicable Lender” shall mean each Lender that has executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent its signature page to this Amendment prior to 5:00 p.m., New York City time, on 12:00 noon, March 1, 2016 or such later date and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared time specified by the Borrowers Parent Guarantor and notified in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) writing to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to Lenders by the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders Agreement and the Agent Amended Actavis Term Credit Agreement shall become effective as of the date (at the option of Lenders and Agent“Third Restatement Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After giving effect to this Amendmentthe Administrative Agent shall have received from Ultimate Parent, Intermediate Parent, the representations Borrower and warranties contained herein each other Loan Party, the Lenders constituting at least the Required Lenders under the Existing Actavis Term Credit Agreement and in the Loan Administrative Agent (i) a counterpart of this Amendment Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include transmission by facsimile or other electronic imaging (e.g., a “pdf” or “tif”) of a signed signature page of this Amendment Agreement, as amended hereby, shall be true and correct as ) that such party has signed a counterpart of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)this Amendment Agreement;
(b) After giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred received a certificate, dated the Third Restatement Effective Date and be continuing;executed by a Responsible Officer of Ultimate Parent, confirming the accuracy of the representations and warranties set forth in Section 3 hereof; and
(c) The Borrowers the Administrative Agent, each Lender and each of ▇.▇. ▇▇▇▇▇▇ Securities LLC, Mizuho Bank, Ltd. and ▇▇▇▇▇ Fargo Securities, LLC (collectively, the “Amendment Lead Arrangers”) shall have delivered to the Agent each of the followingreceived, in each caseimmediately available funds, in form all fees and substance satisfactory to the Agent other amounts due and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default payable on or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Third Restatement Effective Date in connection with this Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect including, to the due authorizationextent invoiced, execution reimbursement or payment of all reasonable and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
documented out-of-pocket expenses (ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all including reasonable and documented fees, costscharges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under the Existing Actavis Term Credit Agreement or as separately agreed by Ultimate Parent and the Amendment Lead Arrangers. The Administrative Agent shall promptly notify, and expenses owed to and/or incurred by the Agent in writing, Ultimate Parent and the Lenders arising in connection with this Amendment and of the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Third Restatement Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability such notice shall be greater than zero;
(e) Holdings conclusive and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and date (the Agent (at the option of Lenders and Agent“Effective Date”) until on which each of the following conditions precedent has been is satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):or waived:
(a) After the Administrative Agent (or its counsel) shall have received (x) (A) from the Required Tranche Lenders for the Term B Facility (determined before giving effect to the replacement of any Non-Consenting Term B Lenders) and each Lender holding Term B Facility Loans (after giving effect to the replacement of any Non-Consenting Term B Lenders), in each case, (i) a Consent signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this AmendmentAgreement) that such party has signed a Consent and (y) from the Borrower, the representations other Station Parties, the Replacement Term B Lender and warranties contained herein and in the Loan Administrative Agent, an executed counterpart to this Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default the representations and warranties set forth in Section 5 above shall have occurred be true and be continuingcorrect;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form any fees and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented out-of-pocket expenses (including reasonable fees, costs, charges and expenses owed to and/or incurred disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) owing by the Borrower to the Administrative Agent and the Lenders arising JPMCB pursuant to this Amendment or any letter agreement entered into in connection with this Amendment and invoiced at least three (3) Business Days prior to the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers date hereof shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers been paid in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretionfull; and
(hd) The Borrowers (i) all Obligations of the Borrower with respect to the Term B Facility Loans owing to any Non-Consenting Term B Lender being replaced pursuant to Section 3 shall have received be paid in full to such Non-Consenting Term B Lender concurrently with the prior written consent assignment described in Section 3, (ii) all Obligations of the Borrower with respect to the Term B Facility Loans owing to any Assigning Consenting Term B Lender shall be paid in full to such Assigning Consenting Term B Lender concurrently with the assignment described in Section 4(b)(i), (iii) all Obligations of the Borrower with respect to the Cashless Consenting Term B Lender Assigned Amount owing to any Cashless Consenting Term B Lender pursuant to a Cashless Consenting Term B Lender Assignment contemplated by Section 4(c) shall be paid in full to such Cashless Consenting Term B Lender concurrently with the assignment described in Section 4(c) and (iv) the Replacement Term B Lender shall pay to each such Non-Consenting Term B Lender, each such Assigning Consenting Term B Lender and each such Cashless Consenting Term B Lender an amount equal to (x) in the case of any Non-Consenting Term B Lender and any Assigning Consenting Term B Lender, the principal amount of the Term Loan Agent B Facility Loans held by such Non-Consenting Term B Lender or such Assigning Consenting Term B Lender, as applicable, in each case, plus accrued and unpaid interest thereon, and (y) in the required number case of lenders under any Cashless Consenting Term B Lender, the Cashless Consenting Term Loan Facility to this AmendmentB Lender Assigned Amount of such Cashless Consenting Term B Lender, in each case, plus accrued and unpaid interest thereon.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders effective only if and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):when:
(a) After giving effect this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained herein and in the Loan Agreement, as amended hereby, Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the date hereof as if made on Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the date hereof, except for such representations and warranties limited by their terms to a specific date Administrative Agent;
(such representations and warranties being true and correct e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default Effective Date and signed by a Financial Officer or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each other authorized officer of the followingBorrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Administrative Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such other documents, corporate resolutions, corporate certificatesinsurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and information that security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent shall requiremay reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(gj) All proceedings taken the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the transactions contemplated by this First Amendment Additional Term B Loan Commitments in form and all documentation and other legal matters incident thereto shall be substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent in to execute this Amendment on its sole behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and absolute discretionLoans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(hm) The Borrowers the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the prior written consent Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the Term Loan Agent type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the required number Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of lenders under the Term Loan Facility foregoing conditions is satisfied (such conditions to this Amendmentbe satisfied no later than 5pm EST on June 2, 2017).
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon effective only if and when:
(a) the Lenders Loan Parties, PubCo, the Administrative Agent and the Required Lenders have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) PubCo shall have executed and delivered to the Administrative Agent a Pledge Agreement Supplement that is substantially in the form of Exhibit F attached hereto and shall have delivered to the Administrative Agent or its designated custodian all membership interest certificates representing its direct Equity Interests in the Borrower;
(at c) PubCo, the option Administrative Agent, Wilmington Trust, National Association and the other Loan Parties party thereto shall have executed and delivered to the Administrative Agent a supplement to the Custodian Agreement that is substantially in the form of Lenders Exhibit G attached hereto;
(d) PubCo, the Administrative Agent and Agentthe applicable Loan Parties shall have executed and delivered to the Administrative Agent the Pledge Agreement Amendment;
(e) until the Administrative Agent shall have received evidence reasonably satisfactory to it, that the initial public offering of PubCo stock described in the Form S-1 Registration Statement filed by PubCo with the U.S. Securities and Exchange Commission (File No. 333-207397), shall have occurred or shall occur substantially concurrently with the Effective Date;
(f) the Administrative Agent shall have received evidence reasonably satisfactory to it that the acquisition by the Borrower and its Subsidiaries of all of the Equity Interests in the ▇▇▇▇▇▇▇▇ Entities shall have occurred or shall occur substantially concurrently with the Effective Date;
(g) the Administrative Agent shall have received evidence reasonably satisfactory to it that each of the following conditions precedent has Management Agreements in effect as of the Effective Date shall have been satisfied terminated;
(h) each of the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects and, in furtherance thereof, each of the Loan Parties and PubCo shall have received all necessary approvals and/or consents from the Gaming Authorities in form and substance satisfactory to the Administrative Agent (for the date upon which such conditions are satisfied, execution and delivery of this Amendment and the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as performance of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as obligations of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, Loan Parties and PubCo under or in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original respect of this Amendment;
(iii) an amendment the Administrative Agent shall have received legal opinions reasonably satisfactory to it from the counsel to the Fee LetterLoan Parties and PubCo with respect to Nevada, New York, California and Delaware law matters;
(iiij) the Administrative Agent shall have received, executed by a joint, irrevocable instruction letter from Responsible Officer or other authorized signatory of the Borrower, signing Loan Party and PubCo that is party thereto and in form and substance reasonably satisfactory to the Term Loan Administrative Agent, and the Agent to the Crack Spread Hedging Counterpartysuch certificates of resolutions or other action, countersigned by the Crack Spread Hedging Counterparty;
(iv) each incumbency certificates and/or other certificates of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer Responsible Officers of each Obligor certifying that no Default Loan Party and PubCo as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) other authorized signatory thereof authorized to act as a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all Responsible Officer and/or execute documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect other Loan Documents to which such payments, the funding of Loans and issuances of Letters of Credit Loan Party or PubCo is a party or is to be a party on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(ik) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Administrative Agent shall have received for the account of each Lender that executes and delivers this Amendment prior to 5:00pm New York time on April 6, 2016, a cash fee (due and payable only upon satisfaction of subclause 5(e) above) in the amount of 0.05% of such other documents, corporate resolutions, corporate certificates, Lender’s aggregate Term Loans and information that the Agent shall require, each in form and substance satisfactory to the AgentRevolving Credit Commitments outstanding on such date;
(gl) All proceedings taken in connection with the transactions contemplated Borrower shall have paid all other fees and expenses owed to the Administrative Agent, the Joint Lead Arrangers and the Lenders (including fees and expenses of counsel) accrued through and including the Effective Date to such Administrative Agent, Joint Lead Arrangers and Lenders (or to such counsel); and
(m) the Administrative Agent and Lenders shall have received, at least five (5) Business Days prior to the Effective Date (or such shorter time period as agreed to by this Amendment and such Persons), all documentation and other legal matters incident thereto information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act. This Amendment shall be satisfactory to effective on the Agent in its sole and absolute discretion; and
date (hthe “Effective Date”) The Borrowers shall have received the prior written consent on which all of the Term Loan Agent and the required number of lenders under the Term Loan Facility foregoing conditions are satisfied (such conditions to this Amendmentbe satisfied no later than July 5, 2016).
Appears in 1 contract
Effectiveness of this Amendment. (a) This First Amendment shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent become effective (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
) when (ai) After giving effect this First Amendment has been duly executed and delivered by the Company, Parent, each of the Guarantors and the Required Holders, (ii) the First Amendment Legal Opinion (as defined below) has been delivered to the Consenting Holders, and (iii) the Company has transmitted payment of the Initial Portion (as defined below) of the Consent Fee (as defined below), such Consent Fee to be allocated to each Holder who consented to this AmendmentFirst Amendment by 5:00 p.m., the representations and warranties contained herein and in the Loan AgreementNew York City time, on March 12, 2008 (each, a “Consenting Holder”), as amended herebyevidenced by such Holder’s execution and delivery thereof to the Company by such date, shall be true and correct pro rata in accordance with the principal amount of Notes held by such Consenting Holder as of the date hereof as Amendment Effective Date; provided, however, that the provisions of Sections 1(c) and 1(d)(ii) shall only become effective if made (and when) all of the Holders have executed and delivered this First Amendment to the Company. The Initial Portion of the Consent Fee shall be paid to each Consenting Holder in accordance with wire instructions provided by such Consenting Holder to the Company on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);signature pages hereto.
(b) After giving effect For purposes hereof, the “Consent Fee” shall mean a fee in an amount equal to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered up to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion$10,500,000 paid as follows:
(i) an executed original of this Amendmentamount equal to $3,500,000 shall be paid on (or prior to) the Amendment Effective Date (such amount, the “Initial Portion”), which payment shall permit the Company to withdraw $25,000,000 from the Cash Reserve Account;
(ii) an amendment amount equal to $3,500,000 shall be paid if the Fee Letter;Company notifies the Holders in writing that it wishes to withdraw in excess of $25,000,000 in the aggregate from the Cash Reserve Account (such amount, the “Second Installment Fee”), which payment shall permit the Company to withdraw $50,000,000 in the aggregate from the Cash Reserve Account (including amounts withdrawn pursuant to clause (i) above); and
(iii) a joint, irrevocable instruction letter an amount equal to $3,500,000 shall be paid if the Company notifies the Holders in writing that it wishes to withdraw in excess of $50,000,000 in the aggregate from the BorrowerCash Reserve Account (such amount, the Term Loan Agent“Third Installment Fee”), which payment shall permit the Company to withdraw $75,000,000 (plus any accrued interest in the Cash Reserve Account) in the aggregate from the Cash Reserve Account (including amounts withdrawn pursuant to clauses (i) and (ii) above).
(c) The Company shall pay the Second Installment Fee and the Agent Third Installment Fee to the Crack Spread Hedging CounterpartyConsenting Holders or their transferees, countersigned by each as duly reflected on the Crack Spread Hedging Counterparty;books and records of the Company as of the date of the Company’s written notice described in paragraph (b)(ii) or (iii), as applicable. In the event a Consenting Holder transfers its interest in any Notes subsequent to the date on which such Holder becomes entitled to a Consent Fee payment, the Company shall not incur any liability to pay a Consent Fee to such transferee and shall in any event be obligated to pay the Consent Fee only to the Consenting Holder or its transferee of record on such relevant entitlement date.
(ivd) each of For purposes hereof, the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second “First Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) Legal Opinion” shall mean a favorable opinion of counsel with respect to the due authorization, execution Parent and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of CreditCompany, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in customary form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentsubstance.
Appears in 1 contract
Effectiveness of this Amendment. This The “Amendment Effective Date” shall not be binding upon the Lenders and the Agent (at the option of Lenders and Agent) until each of date on which the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”)::
(a) After giving effect The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) the Consenting Lenders who comprise at least the Required Lenders and (iii) the Administrative Agent, either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);.
(b) After giving effect to this AmendmentImmediately before and immediately after the Amendment Effective Date, (i) no Default or Event of Default shall have occurred and be continuing;continuing and (ii) the representations and warranties (x) of the Borrower set forth in the Financing Documents and (y) in Section 3 of this Amendment shall be true and correct in all material respects as of such date (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(c) The Borrowers Administrative Agent shall have delivered to the Agent each received a certificate of an appropriate officer of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor Borrower certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments conditions set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viiiSection 4(b) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)have been satisfied.
(d) The Borrowers Administrative Agent shall have paid received on or prior to the Amendment Effective Date, in immediately available funds, payment or reimbursement (or the Borrower shall have made arrangements reasonably satisfactory to the Administrative Agent for such payment or reimbursement) of all costs and the Lenders all reasonable out-of-pocket expenses then due and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising payable in connection with this Amendment, including all reasonable invoiced fees and expenses of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, as counsel to the Administrative Agent, to the extent invoiced at least two (2) Business Days prior to the Amendment and Effective Date.
(e) The Administrative Agent shall have received a duly executed certificate of an appropriate officer of the documents and opinions executed Borrower, certifying (i) that the copies of the Borrower’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in connection herewith full force and after giving effect as of the Amendment Effective Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the appropriate Governmental Authority of the jurisdiction of the Borrower’s formation and attached to such paymentsofficer’s certificate, are true, correct and complete and in full force and effect as of the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by that the Borrowers in copies of the ordinary course of business for each of January 2009 Borrower’s resolutions approving and February 2009 containing adopting the information set forth on Schedule 10.1.4(a)(ii) Financing Documents to which it is party, the Loan Agreementtransactions contemplated herein, and authorizing the execution and delivery thereof, as amended hereby;attached to such officer’s certificate, are true, correct and complete copies and in full force and effect as of the Amendment Effective Date and (iii) as to incumbency certificates identifying the officers of the Borrower that are authorized to execute this Amendment and to act on the Borrower’s behalf in connection with this Amendment.
(f) The Administrative Agent shall have received such other documentsa certificate of good standing for the Borrower from the Borrower’s jurisdiction of formation, corporate resolutions, corporate certificates, and information that certified as of a recent date by the appropriate Governmental Authority. The Administrative Agent shall requirenotify the Borrower, each in form the Consenting Lenders and substance satisfactory to the Agent;
(g) All proceedings taken in connection with other Lenders of the transactions contemplated by this Amendment Effective Date and all documentation and other legal matters incident thereto such notice shall be satisfactory to the Agent in its sole conclusive and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentbinding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon the Lenders and the Agent amendment and restatement of the Existing Credit Agreement as set forth in Section 2 hereof shall become effective as of the first date (at such date being referred to as the option of Lenders and Agent“Second Restatement Effective Date”) until on which each of the following conditions precedent shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received from the Borrower, each Issuing Bank and the Issuing Banks Agent either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Amendment) that such party has been satisfied signed a counterpart of this Amendment;
(b) the Administrative Agent shall have received a favorable written opinion (dated the Second Restatement Effective Date and addressed to the Administrative Agent, each Issuing Bank and the Issuing Banks Agent) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):Administrative Agent;
(ac) After giving effect the Administrative Agent shall have received documents and certificates relating to this Amendmentthe organization, existence and good standing of the Borrower and the authorization of the Loan Documents and transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(d) the representations and warranties contained herein and of the Borrower set forth in the Loan Agreement, as amended hereby, Section 3 hereof shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Restatement Effective Date, and the payment Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date and signed by a Financial Officer or the Borrowers chief executive officer of all trade payables aged in excess of their due datesthe Borrower, Availability confirming the accuracy thereof, which shall be greater than zeroin form and substance reasonably satisfactory to the Administrative Agent;
(e) Holdings and the Borrowers Administrative Agent shall have delivered received all amounts due and payable to the Administrative Agent on or prior to the Second Restatement Effective Date pursuant to the Loan Documents, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and the Lenders
(idisbursements of counsel) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared reimbursed or paid by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Borrower hereunder or under any other Loan Agreement, as amended herebyDocument;
(f) The Agent the Borrower shall have (i) received such other documentsan aggregate amount of Net Proceeds from the issuance of Senior Secured Notes that is no less than the sum of the aggregate principal amount of Revolving Loans and Term Loans outstanding immediately prior to giving effect to the Restated Credit Agreement, corporate resolutions(ii) prepaid all Revolving Loans and Term Loans in accordance with the Existing Credit Agreement, corporate certificatesincluding payment of all accrued and unpaid interest thereon, and information that all other amounts then due and payable under the Agent shall require, each in form Existing Credit Agreement and substance satisfactory to (iii) terminated all Commitments under the Agent;Existing Credit Agreement; and
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Administrative Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent received, for account of the Term Loan Issuing Banks entitled thereto, the Amendment Fees required to be paid pursuant to Section 5 hereof. The Administrative Agent shall notify the Borrower, the Issuing Banks Agent and the required number Issuing Banks of lenders under the Term Loan Facility to this AmendmentSecond Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective as of the Lenders and first date on or prior to February 11, 2010 (such date being referred to as the Agent (at the option of Lenders and Agent“Amendment Effective Date”) until on which each of the following conditions precedent has shall have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”)::
(a) After the Administrative Agent (or its counsel) shall have received from the Borrower, the Administrative Agent and each Lender holding Commitments (after giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as all assignments of Commitments pursuant to Section 8.06 of the date hereof as if made Existing Credit Agreement effective on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered prior to the Agent each Amendment Effective Date) either a counterpart of the following, in each case, in form and substance this Amendment signed by or on behalf of such party or written evidence satisfactory to the Administrative Agent and its counsel in their discretion:
(iwhich may include facsimile or other electronic transmission of a signed signature page of this Amendment) an executed original that such party has signed a counterpart of this Amendment;
(b) the Administrative Agent shall have received favorable written opinions (dated the Amendment Effective Date and addressed to the Administrative Agent and each Lender) of (i) Shearman & Sterling LLP, special New York counsel for the Borrower, and (ii) an amendment ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, internal counsel for the Borrower, in substantially the forms of Exhibits D-2 and D-1, respectively, to the Fee LetterExisting Credit Agreement, but with respect to this Amendment and the Restated Credit Agreement, and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(iiic) a jointthe Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, irrevocable instruction letter from existence and good standing of the Borrower, the Term Loan Agent, Borrower and the Agent authorization of this Amendment and the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging CounterpartyAdministrative Agent;
(ivd) each the Administrative Agent shall have received a certificate of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by Chief Financial Officer or the Agent to enable Treasurer of the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor Borrower certifying that (i) the representations and warranties contained in Section 4.01 of the Restated Credit Agreement are true and correct in all material respects on and as of such date as though made on and as of such date and (ii) no Default or Event of Default event has occurred and is continuing on and that no default as of such date which constitutes a Default or event an Event of default Default;
(e) the Borrower shall have prepaid in full, or substantially concurrently with the satisfaction of the other conditions precedent set forth in this Section shall prepay in full, the principal of and interest on all loans and all fees and other amounts accrued or owing under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate dated as of no more than three Business Days prior to the Second Amendment Closing DateOctober 14, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement2005, as heretofore amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Term Loan Agreement”).
(d) The Borrowers shall have paid to , among the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such paymentsBorrower, the funding of Loans lenders party thereto and issuances of Letters of Credit on Citibank, N.A., as the Second Amendment Effective Dateadministrative agent, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability Term Loan Agreement shall be greater than zero;
(e) Holdings terminated, and the Borrowers Administrative Agent shall have delivered received evidence reasonably satisfactory to the Agent and the Lenders
(i) the projections and consolidated operating budget it of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended herebyforegoing;
(f) The Citigroup Global Markets Inc. and the Administrative Agent shall have received such all fees and other documents, corporate resolutions, corporate certificates, amounts due and information that the Agent shall require, each in form and substance satisfactory payable to them on or prior to the Agent;
(g) All proceedings taken Amendment Effective Date pursuant to any Loan Document or any letter agreements entered into by them and the Borrower in connection with the transactions contemplated hereby, including reimbursement of reasonable out-of-pocket costs and expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower;
(g) the Administrative Agent shall have received, for the account of each Lender that executes and delivers a copy of this Amendment to the Administrative Agent (or its counsel), a fee based on the Commitment of such Lender as of the Amendment Effective Date, in the amount previously communicated to such Lender in connection with the arrangement of this Amendment;
(h) the Borrower shall have paid to the Administrative Agent, for the account of each Lender entitled thereto, all accrued and unpaid interest on all outstanding Loans under the Existing Credit Agreement and all documentation accrued and unpaid fees (including facility fees and letter of credit fees) under the Existing Credit Agreement, in each case to but excluding the Amendment Effective Date, and all other legal matters incident thereto shall be satisfactory amounts due and payable to such Lender under the Existing Credit Agreement on or prior to the Agent in its sole and absolute discretionAmendment Effective Date; and
(hi) The Borrowers the Borrower shall have received paid to the prior written consent Administrative Agent, for the account of each Lender entitled thereto, all amounts required to be paid by it pursuant to Section 4 hereof, to the extent invoiced. The Administrative Agent shall notify the Borrower and the Lenders of the Term Loan Agent Amendment Effective Date, and the required number of lenders under the Term Loan Facility to this Amendmentsuch notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness of this Amendment. This The Lender and the Borrowers agree that the terms of this Amendment shall not be binding upon the Lenders effective (and the Agent (at the option of Lenders Lender shall have no obligations under this Amendment) unless and Agent) until each all of the following conditions precedent has have either been satisfied fulfilled in form a manner satisfactory to the Lender or waived in writing by the Lender:
(A) The Lender shall have received all items on the List of Closing Documents attached hereto and made a part hereof as EXHIBIT P-1 (deliveries required for the Grogan's Transaction and this Amendment), such items to be i▇ ▇▇▇▇ ▇nd substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan AgentLender, and to be executed by all parties thereto when the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each nature of the such items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)so requires.
(dB) The Borrowers shall have paid to the Agent and the Lenders Lender all reasonable and documented fees, costs, costs and expenses owed to and/or incurred by as of the Agent and the Lenders arising date hereof in connection with this Amendment Agreement and the other documents and opinions instruments executed and delivered in connection herewith and after giving effect to such paymentsor contemplated by the terms hereof (collectively, the funding of Loans and issuances of Letters of Credit on "Amendment Documents") or otherwise in connection with the Second Amendment Effective Date, and the payment by Loan which the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered are obligated to pay pursuant to the Agent and the Lenders
(i) the projections and consolidated operating budget terms of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) 12.7 of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;.
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(gC) All proceedings taken in connection with the transactions contemplated by execution of this Amendment, all other Amendment Documents, and all documentation documents and other legal matters incident papers relating thereto shall be satisfactory to the Agent Lender. The Lender shall have received copies of such documents and papers as the Lender may reasonably request in its sole connection therewith, all in form and absolute discretion; andsubstance satisfactory to the Lender.
(hD) The Lender shall have received a certificate dated as of the date hereof and signed by the chairman, vice chairman or chief executive officer and the chief financial officer or treasurer of each Borrower certifying that the conditions specified in this Section 5 have been fulfilled.
(E) The Borrowers shall have received provided to the prior written consent Lender updated and corrected Schedules in form and substance satisfactory to the Lender which shall be substituted for the Schedules attached to the Original Loan Agreement.
(F) The Borrowers shall have paid to the Lender a closing fee in the amount of $35,000 in connection with the Lender's agreement (i) to increase the amount of the Revolving Credit Commitment, (ii) to fund the Grogan's Term Loan Agent and (iii) to fund the required number Arizona Term Loan.
(G) The Borrowers shall have duly executed and delivered to the Lender a promissory note, substantially in the form of lenders under EXHIBIT R attached hereto and made a part hereof (as the Term same has been or may be amended, modified, extended, and renewed from time to time, the "Substitute Revolving Credit Note"), to evidence the increase m the Revolving Credit Commitment and to replace the exiting Revolving Credit Note. Upon the Borrowers complying with the foregoing, (i) the Lender will return to the Borrowers the existing Revolving Credit Note, marked "cancelled" and (ii) all references in the Loan Facility Agreement to this Amendmentthe Revolving Credit Note shall be deemed to refer to the Substitute Revolving Credit Note.
Appears in 1 contract
Sources: Loan and Security Agreement (Atlantic Beverage Co Inc)
Effectiveness of this Amendment. This Amendment shall not be binding upon become effective on the Lenders and the Agent (at the option of Lenders and Agent) until each of date on which the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agentundersigned Noteholders (such date being hereinafter referred to as the "Effective Date"):
(a) execution and delivery of this Amendment by the Obligors and Required Noteholders;
(b) execution and delivery to the Noteholders by the Guarantor of a Reaffirmation of Guaranty in the form attached hereto as Exhibit A (the "Reaffirmation of Guaranty");
(c) delivery to the Noteholders of the pro forma compliance certificate required pursuant to the last paragraph of Section 10.1 of the Note Agreement, reflecting the consummation of the Cornerstone Acquisition;
(d) evidence that the Cornerstone Acquisition has been approved by the required lenders under the Bank Credit Agreement and the required noteholders under the Note Purchase Agreement dated as of April 26, 2006, among the Obligors and the purchasers identified therein, in each case on terms that do not require any of the Affected Subsidiaries to guarantee the Obligors' obligations under either thereof.
(e) delivery to the Noteholders of certified resolutions of Holdings and Sovran, authorizing this Amendment and the Reaffirmation of Guaranty;
(f) the accuracy on the Effective Date of the representations and warranties in Section 6.1; <PAGE>
(g) All proceedings taken payment by the Obligors to each Noteholder of an amendment fee equal to one-twentieth of one percent (0.05%) of the principal amount of Notes held by such Noteholder;
(h) payment by the Obligors of the fees and expenses described in connection with the transactions contemplated by this Amendment Note Agreement and all documentation and other legal matters incident thereto shall be satisfactory invoiced to the Agent in its sole and absolute discretionObligors prior to the date hereof; and
(hi) The Borrowers shall have received the prior written consent evidence of consummation of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentCornerstone Acquisition.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding become effective as of the date hereof (the “Effective Date”) upon receipt by the Lenders and the Agent (at the option Administrator of Lenders and Agent) until each of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):following:
(a) After giving effect duly executed counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the parties hereto;
(b) duly executed counterparts of the A&R Fee Letter (whether by facsimile or otherwise) executed by each of the parties thereto;
(c) certified copies of: (i) the resolutions or unanimous written consents of the board of directors (or the equivalent thereof) of the Seller authorizing the execution, delivery and performance by the Seller of this Amendment, the A&R Fee Letter and the other Transaction Documents to which it is a party; (ii) all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to this Amendment, the representations A&R Fee Letter and warranties contained herein the other Transaction Documents and in (iii) the Loan Agreement, as amended hereby, shall be true certificate of formation and correct as limited liability company agreement of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)Seller;
(bd) After giving effect a certificate of the Secretary or Assistant Secretary of the Seller, the Servicer and the Performance Guarantor certifying the names and true signatures of its officers who are authorized to sign this Amendment, no Default or Event of Default shall have occurred the A&R Fee Letter and be continuingthe other Transaction Documents to which it is a party;
(ce) The Borrowers shall have delivered a favorable opinion, addressed to each Rating Agency, the Administrator, each Purchaser Agent and each of the following, in each casePurchaser, in form and substance reasonably satisfactory to the Agent Administrator, from ▇▇▇▇▇ Day, counsel for the Seller, the Servicer and its the Performance Guarantor, and internal counsel in their discretion:for the Seller, the Servicer and the Performance Guarantor, covering such matters as the Administrator may reasonably request, including, without limitation, certain organizational, no-conflict and New York enforceability matters; and
(if) an executed original evidence of this Amendment;
payment by the Seller of the “Amendment Fee” (ii) an amendment to under and as defined in the A&R Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf terms of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”)A&R Fee Letter.
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Effectiveness of this Amendment. (a) This Second Amendment shall not be binding upon become effective (the Lenders Effective Date) when (i) this Second Amendment has been duly executed and delivered by the Agent (at Company, the option of Lenders and Agent) until Parent, each of the following conditions precedent Guarantors and the Required Holders,(ii) the Second Lien Notes have been issued by the Company, (iii) Packet Video Corporation has been satisfied in form and substance satisfactory to duly executed the Agent (the date upon which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Security Agreement, as amended hereby, shall be true and correct (iv) the Collateral Agent has executed the intercreditor agreement dated as of the date hereof Effective Date entered into with respect to the Second Lien Notes and the Exchange Notes substantially in the form attached hereto as if made on Exhibit A (the date hereof, except for such representations Intercreditor Agreement) and warranties limited by their terms an amendment to a specific date (such representations and warranties being true and correct the Parent Guaranty dated as of the specified date relative theretoEffective Date substantially in the form attached hereto as Exhibit B (the Parent Guaranty Amendment) (v) the Second Amendment Legal Opinion (as defined below) has been delivered to the Consenting Holders, and (vi) the Company has transmitted payment, on or before the Effective Date, of the applicable Consent Fee (as defined below) to each Holder (other than any Holder who is, or is managed by, an Avenue Capital Group entity) who consented to this Second Amendment by noon, New York City time, on September 26, 2008 (each, a Consenting Holder);, as evidenced by such Holders execution and delivery hereof to the Company by such time; provided, however, that the consents provided in Sections 5(d) and 5(e) of this Second Amendment shall become effective immediately when this Second Amendment has been duly executed and delivered by the Company, the Parent, each of the Guarantors and the Required Holders.
(b) After giving effect to this AmendmentFor purposes hereof, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) Legal Opinion means a favorable opinion of counsel with respect to the due authorization, execution Parent and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of CreditCompany, in substantially the form attached hereto as Attachment 5 hereto (of the “L/C Reimbursement Subordination Agreement”)First Amendment Legal Opinion.
(dc) The Borrowers shall have paid For purposes hereof, Consent Fee means, with respect to the Agent and the Lenders all reasonable and documented feeseach Consenting Holder, costs, and expenses owed a fee equal to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
one percent (e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii1%) of the Loan Agreement for the 2009 Fiscal Year, and total outstanding principal amount of Notes held by such Consenting Holder (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) aggregate not to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendmentexceed $1,750,000).
Appears in 1 contract
Effectiveness of this Amendment. This The effectiveness of this Amendment shall not be binding upon is subject to the Lenders and the Agent (at the option of Lenders and Agent) until each satisfaction of the following conditions precedent has been satisfied in form and substance satisfactory to the Agent (the date upon on which such conditions are have been satisfied, the “Second Third Amendment Effective Closing Date”):); provided however, that the amendments to the Credit Agreement set forth in Section 2 hereof shall not become effective until the satisfaction of the conditions subsequent set forth in Section 4 of this Amendment:
(a) After giving effect to the Administrative Agent shall have received this Amendment, executed and delivered by the representations Administrative Agent, Holdings, the Borrower and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto)Required Lenders;
(b) After giving effect the Administrative Agent shall have received (i) for the account of each Lender that has consented to this AmendmentAmendment and delivered (and released) to the Administrative Agent an executed counterpart hereof by facsimile at (▇▇▇) ▇▇▇-▇▇▇▇, no Default or Event attention of Default shall have occurred ▇▇▇▇▇ ▇▇▇▇▇▇, by 12:00 noon (New York City time) on September 12, 2008 (each a “First Tier Consenting Lender”), an amendment fee equal to 3.00% of the sum of the unpaid principal amount of the Term Loans and be continuingthe Revolving Commitments held by such First Tier Consenting Lender on the Third Amendment Closing Date and (ii) for the account of each Lender that has consented to this Amendment and delivered (and released) to the Administrative Agent an executed counterpart hereof by facsimile at (▇▇▇) ▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇, after 12:00 noon (New York City time) on September 12, 2008 but prior to 12:00 noon (New York City time) on September 17, 2008 (each a “Second Tier Consenting Lender”), an amendment effectiveness fee equal to 1.50% of the sum of the unpaid principal amount of the Term Loans and the Revolving Commitments held by such Second Tier Consenting Lender on the Third Amendment Closing Date;
(c) The Borrowers the Administrative Agent shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned received all expenses payable by the Crack Spread Hedging Counterparty;
(iv) each of Borrower as set forth in the items required to Credit Agreement for which invoices have been delivered pursuant to Section 3(apresented (including the reasonable fees and expenses of legal counsel) above;
(v) such information as requested by on or before the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Third Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ixd) the Administrative Agent shall have received a Subordination Agreement by and among certificate of each Loan Party, dated the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, date hereof substantially in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent of Exhibit B hereto, with appropriate insertions and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;attachments; and
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Administrative Agent shall have received the executed legal opinion of counsel to the Borrower and the Guarantor, addressing such other documents, corporate resolutions, corporate certificates, and information that matters as the Administrative Agent shall requirereasonably request, each in form and substance satisfactory to including, without limitation, the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and enforceability of all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this AmendmentDocuments.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall not be binding upon effective only if and when: (a) the Lenders Administrative Agent shall have received a copy of this Amendment, duly executed and delivered by Borrower, the Agent (at the option of Lenders other Loan Parties and Agent) until each of the following Lenders party hereto, which Lenders constitute all of the Lenders under the Existing Credit Agreement, (b) the Term Loans under the Existing Credit Agreement shall have been repaid in full (and each of the Lenders, by release of its signature pages hereto, confirms its agreement to fund in accordance with Section 2.1A(ii) of the Credit Agreement its Pro Rata Share of the Revolving Loans subject to the Notice of Borrowing previously delivered for a Funding Date as of the date hereof), (c) the Lenders shall have entered into such Assignment Agreements and otherwise consummated trades of the Revolving Loans such that, immediately prior to the Fourth Amendment Effective Date, such Lenders and their respective Revolving Loan Commitments are as set forth in Attachment 4 hereto (and each of the Lenders, by release of its signature pages hereto, confirms its release of its signature pages to such Assignment Agreements), and (d) each of the conditions precedent has set forth in Section 4.1 of the Credit Agreement are satisfied (or waived pursuant to Section 4.1 of the Credit Agreement), which conditions are hereby incorporated by reference herein with the same effect as if each such condition had been separately set forth in this Amendment (the first date on which all of such conditions have been satisfied in form and substance satisfactory to the Agent (the date upon which such conditions are satisfied, being the “Second Fourth Amendment Effective Date”):
(a) After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms to a specific date (such representations and warranties being true and correct as of the specified date relative thereto);
(b) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve in accordance with the Loan Agreement, as amended hereby;
(viii) a favorable opinion of counsel with respect to the due authorization, execution and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
(i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) to the Loan Agreement, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment (other than the consents set forth in Section 4 above which shall not be binding effective on the date hereof) shall be effective upon Lender’s receipt of the Lenders following items, in form and content acceptable to the Agent (at the option Lender:
6.1 This Amendment, duly executed in a sufficient number of Lenders counterparts for distribution to all parties;
6.2 The Continuing Guaranty duly executed by RER Enterprises and Agent) until ▇▇▇▇▇▇ Wireless IC-DISC;
6.3 A Pledged Interests Addendum duly executed by each of Novatel, RER Enterprises and ▇▇▇▇▇▇ Wireless;
6.4 A Patent and Trademark Security Agreement duly executed by ▇▇▇▇▇▇ Wireless and a Patent and Trademark Security Agreement duly executed by Novatel;
6.5 Collateral Access Agreements for each of the following conditions precedent has been satisfied in form locations: 1505 and substance satisfactory ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇;
6.6 Certificates of insurance relating to the Agent (New Loan Parties;
6.7 Current searches of the date upon which New Loan Parties showing that no Liens have been filed and remain in effect against such conditions are satisfied, the “Second Amendment Effective Date”):Person other than Permitted Liens;
(a) After giving effect to this Amendment, the representations and warranties contained herein and 6.8 A perfected first priority security interest in the assets of each New Loan Agreement, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties limited by their terms Party (subject to a specific date (such representations and warranties being true and correct as of the specified date relative theretoPermitted Liens);
(b) After giving effect 6.9 Such forms and verifications as Lender may need to this Amendment, no Default comply with the U.S.A. Patriot Act and any other regulatory or Event internal policies applicable to or mandated by Lender;
6.10 An opinion of Default counsel to the New Loan Parties;
6.11 The Merger shall have occurred and be continuing;
(c) The Borrowers shall have delivered to the Agent each of the following, in each case, in form and substance satisfactory to the Agent and its counsel in their discretion:
(i) an executed original of this Amendment;
(ii) an amendment to the Fee Letter;
(iii) a joint, irrevocable instruction letter from the Borrower, the Term Loan Agent, and the Agent to the Crack Spread Hedging Counterparty, countersigned by the Crack Spread Hedging Counterparty;
(iv) each of the items required to have been delivered pursuant to Section 3(a) above;
(v) such information as requested by the Agent to enable the Agent to calculate and implement the Earnout Reserve;
(vi) a certificate signed by a Senior Officer of each Obligor certifying that no Default or Event of Default has occurred and is continuing and that no default or event of default under the Term Loan Agreement has occurred and is continuing;
(vii) a Borrowing Base Certificate as of no more than three Business Days prior to the Second Amendment Closing Date, reflecting the amendments set forth herein and the implementation of the Earnout Reserve consummated in accordance with the Loan Agreementterms of the ▇▇▇▇▇▇ Merger Documents, as amended herebythe forms of which shall have been approved by Lender, and no terms or conditions of the ▇▇▇▇▇▇ Merger Documents (other than any immaterial terms or conditions) shall have been waived without the consent of Lender;
(viii) a favorable opinion 6.12 A certificate from the Secretary of counsel with respect to the due authorization, execution each Borrower and enforceability of this Amendment and all documents executed in connection herewith, and such other matters as may be reasonably required by the Agent and its counsel; and
(ix) a Subordination Agreement by and among the Agent (on behalf of the Lenders), the Borrowers, Holdings, and one or more Affiliates of the Borrowers or Holdings that are obligated to reimburse the issuer or issuers of the Additional Letters of Credit for any drawings under such Additional Letters of Credit, in substantially the form attached hereto as Attachment 5 hereto (the “L/C Reimbursement Subordination Agreement”).
(d) The Borrowers shall have paid to the Agent and the Lenders all reasonable and documented fees, costs, and expenses owed to and/or incurred by the Agent and the Lenders arising in connection with this Amendment and the documents and opinions executed and delivered in connection herewith and after giving effect to such payments, the funding of Loans and issuances of Letters of Credit on the Second Amendment Effective Date, and the payment by the Borrowers of all trade payables aged in excess of their due dates, Availability shall be greater than zero;
(e) Holdings and the Borrowers shall have delivered to the Agent and the Lenders
each New Loan Party (i) the projections and consolidated operating budget of the Borrowers and their subsidiaries required to be delivered pursuant to Section 10.1.4(a)(vii) of the Loan Agreement for the 2009 Fiscal Year, and (ii) an operating report prepared by the Borrowers in the ordinary course of business for each of January 2009 and February 2009 containing the information set forth on Schedule 10.1.4(a)(ii) attesting to the Governing Documents of such Borrower and such New Loan AgreementParty, as amended hereby;
(f) The Agent shall have received such other documents, corporate resolutions, corporate certificates, and information that the Agent shall require, each in form and substance satisfactory to the Agent;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be satisfactory to the Agent in its sole and absolute discretion; and
(h) The Borrowers shall have received the prior written consent of the Term Loan Agent and the required number of lenders under the Term Loan Facility to this Amendment.applicable,
Appears in 1 contract
Sources: Credit and Security Agreement (Novatel Wireless Inc)