Effectiveness. This Agreement shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”): (a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof). (b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part. (c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2. (d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request. (e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement. (f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 3 contracts
Sources: Incremental Term Loan Assumption Agreement, Incremental Term Loan Assumption Agreement (Community Health Systems Inc), Incremental Term Loan Assumption Agreement
Effectiveness. This Agreement Incremental Amendment, and the obligation of each New 2014 Initial Term Lender to make the New 2014 Initial Term Loan to be made by it pursuant to Section 2(a)(i) hereof, shall become effective on and as of the date on which (the “Incremental Amendment No. 1 Effective Date”) when each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent shall have received duly counterparts of this Incremental Amendment executed and delivered counterparts by a duly authorized officer of this Agreement thateach of (i) the Loan Parties, when taken together, bear (ii) the signatures of Parent, Administrative Agent and (iii) the Borrower, each Subsidiary Guarantor, each Incremental 2018 New 2014 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The the Borrower shall have paid all fees due and payable to the Arranger pursuant to that certain engagement letter, dated as of June 3, 2014 (the “Engagement Letter”), among the Borrower, the Arranger and TPG Capital BD, LLC;
(c) the Administrative Agent and the Arranger shall have received all reasonable and documented costs and expenses required to be paid or reimbursed under Section 10.04 of the Credit Agreement or the Engagement Letter for which invoices have been presented three Business Days prior to the Incremental Amendment No. 1 Effective Date;
(d) the representations and warranties set forth in Section 5 hereof shall be true and correct;
(e) the Administrative Agent shall have received payment received:
(i) a certificate of each Loan Party, dated the Incremental Amendment No. 1 Effective Date, executed by two Responsible Officers of such Loan Party, substantially in the form of the certificates delivered on the Closing Date pursuant to Section 4.01(a)(v) of the Credit Agreement (together with the attachments described therein);
(ii) a certificate of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party;
(iii) a copy of the resolutions of the board of directors or other governing body, as applicable, of each Loan Party (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of this Incremental Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% borrowings of the aggregate outstanding principal amount of such Consenting Lender’s 2021 New 2014 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.contemplated hereunder;
(civ) The Administrative Agent shall have received a favorable written customary legal opinion of (iw) Bass, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, special New York counsel for Parent to Holdings, the Borrower and its Subsidiaries, (x) Benesch, Friedlander, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Ohio counsel to Holdings, the BorrowerBorrower and its Subsidiaries, substantially (y) ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Connecticut counsel to Holdings, the effect set forth on Exhibit B-1 Borrower and its Subsidiaries and (iiz) K&L Gates LLP, special New Jersey and Washington counsel to Holdings, the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of Borrower and its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationSubsidiaries, in each case of such Loan Party as substantially in effect on the Effective Date and at all times since a date prior to the date form of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent respective opinions delivered on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereofpursuant to Section 4.01(a)(vi) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and Credit Agreement;
(C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iiiv) a solvency certificate of another from the chief financial officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance dated the Incremental Amendment No. 1 Effective Date, substantially in the form of Exhibit G to the Credit Agreement;
(vi) a Term Note duly executed and delivered by the Borrower in favor of each New 2014 Term Lender, if any, requesting the same; and
(vii) a Committed Loan Notice in accordance with Section 2.02(a) of the Amended Credit Agreement; and
(f) the incurrence of the New 2014 Initial Term Loans on the Incremental Amendment No. 1 Effective Date shall comply with the conditions precedent set forth in paragraphs (b) and (c) requirements of Section 4.01 2.12 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 3 contracts
Sources: Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp), Incremental Amendment (American Tire Distributors Holdings, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Second Amendment Effective Date”):
(a) The on which the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing documents or other items, each Subsidiary Guarantordated the Second Amendment Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party), including receipt of consent from (i) each Incremental 2018 Term F Lender Extending Bank and (ii) the Required Lenders (determined immediately after giving effect to Banks under the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Existing Credit Agreement;
(b) The receipt by the Administrative Agent of an opinion of the General Counsel of the Borrower, substantially in the form of Exhibit F to the Existing Credit Agreement, provided that an enforceability opinion under New York law, that is reasonably acceptable to the Administrative Agent, shall be furnished by the Borrower’s New York counsel, Fulbright & ▇▇▇▇▇▇▇▇ LLP, subject to customary assumptions, qualifications and limitations;
(c) receipt by the Administrative Agent of a certificate signed by any one of the Chief Financial Officer, the Chief Executive Officer, the Treasurer, an Assistant Secretary-Treasurer, the Controller or the Vice President, Capital Markets Funding of the Borrower to the effect that the conditions set forth in clauses (c) through (g), inclusive, of Section 3.03 of the Extended Credit Agreement have been satisfied as of the Second Amendment Effective Date and, in the case of clauses (c), (e) and (g), setting forth in reasonable detail the calculations required to establish such compliance;
(d) receipt by the Administrative Agent of a certificate of an officer of the Borrower acceptable to the Administrative Agent stating that all consents, authorizations, notices and filings required or advisable in connection with this Amendment are in full force and effect, and the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered evidence thereof reasonably satisfactory to it;
(e) receipt by the Administrative Agent and the Syndication Agent (or its counseltheir respective permitted assigns) its executed signature page and by each Bank Party of all fees required to this Agreement at or prior be paid in the respective amounts heretofore mutually agreed in writing, and all expenses required to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal be reimbursed pursuant to 0.05% the terms of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds andExisting Credit Agreement and for which invoices have been presented, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of at least one (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date business day prior to the date of the resolutions described in clause Second Amendment Effective Date;
(Bf) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to receipt by the Administrative Agent on and the Closing DateBanks of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti- money laundering rules and regulations, including, without limitation, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), USA PATRIOT Act (BTitle III of Pub. L. 107-56; and
(g) that attached thereto is a true and complete copy of resolutions duly adopted receipt by the Board Administrative Agent of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other all documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated request relating to the Effective Date and signed by a Financial Officer existence of the Borrower, confirming compliance with the conditions precedent set forth corporate authority for and the validity of this Amendment all in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior substance reasonably satisfactory to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement Bank Parties of the Second Amendment Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Effectiveness. 7.1 This Agreement Amendment shall become effective only with respect to Sections 4, 5 and 6 hereof on and as of the first date on which each of the following conditions precedent set forth in this Section 7.1 is satisfied (such date, the “Waiver Effective Date”):
(a) The the Administrative Agent shall have received duly executed and delivered counterparts (in such number as may be requested by the Administrative Agent) of this Agreement that, when taken together, bear the signatures of Parent, Amendment from the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Guarantor and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Majority Lenders;
(b) The the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, as counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and Credit Parties, in a form reasonably satisfactory to the Administrative Agent;
(iic) the general counsel proceeds of Parent, substantially the First Lien Second Out Junior Indebtedness incurred pursuant to the effect set forth in Exhibit B-2.First Lien Second Out Credit Agreement contemporaneously with the effectiveness of Sections 4, 5 and 6 hereof comprise an amount not less than $500,000,000 and are funded into the Escrow Account; and
(d) The no Default or Event of Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Amendment.
7.2 This Amendment (other than Sections 4, 5 and 6 hereof) shall become effective on the first date on which each of the conditions set forth in this Section 7.2 is satisfied (the “Amendment Effective Date”):
(a) the Waiver Effective Date shall have occurred;
(b) the Administrative Agent shall have received (i) a certificate an opinion by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationCredit Parties, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof form reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Agent;
(ec) The the Administrative Agent shall have received a certificate, dated duly executed counterparts (in such number as may be requested by the Effective Date and signed by a Financial Officer Administrative Agent) of the Borrower, confirming compliance with Omnibus Amendment from the conditions precedent set forth in paragraphs Borrower and each Guarantor;
(bd) and (c) the Borrower shall have permanently reduced the Revolving Commitments by $200,000,000 pursuant to the terms of Section 4.01 4.2(a) of the Credit Agreement.;
(e) the initial prepayment of the Term Loans on the Early Settlement Date described in Recital G hereof shall be a concurrent condition to the occurrence of the Amendment Effective Date;
(f) The the Borrower shall have paid (i) an amendment fee payable to the Administrative Agent shall have received for the account of each of the Revolving Lenders and Term Loan Lenders (including JPMorgan Chase Bank, N.
A.) who has consented to this Amendment by submitting its signature page on or before 5:00 pm Houston time on Thursday, August 4, 2016 in an amount equal to 25 basis points on each such Revolving Lender’s Revolving Commitment and such Term Loan Lender’s Term Loan Commitment, as applicable, in effect on the Amendment Effective Date and (ii) to the extent invoiced, all Fees fees and other amounts due and payable on or prior to the Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.the Credit Agreement; and
(g) The Security Documents no Default or Event of Default shall have occurred and be in full force and continuing as of the date hereof, after giving effect on to the terms of this Amendment; provided, that upon the Amendment Effective Date, and the Collateral Agent on behalf terms of Section 2.5 hereof shall be deemed to be effective as of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Third Amendment Effective Date and such notice shall be conclusive and bindingDate.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Amendment Effective Date”):
(a) The on which the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing documents or other items, each Subsidiary Guarantordated the Amendment Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party), including receipt of consent from (i) each Incremental 2018 Term F Lender Extending Bank and (ii) the Required Lenders (determined immediately after giving effect to Banks under the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Existing Credit Agreement;
(b) The receipt by the Administrative Agent of an opinion of the General Counsel of the Borrower, substantially in the form of Exhibit F to the Existing Credit Agreement, provided that an enforceability opinion under New York law, that is reasonably acceptable to the Administrative Agent, shall be furnished by the Borrower’s New York counsel, O’Melveny & ▇▇▇▇▇ LLP, subject to customary assumptions, qualifications and limitations;
(c) receipt by the Administrative Agent of a certificate signed by any one of the Chief Financial Officer, the Chief Executive Officer, the Treasurer, an Assistant Secretary-Treasurer, the Controller or the Vice President, Capital Markets Funding of the Borrower to the effect that the conditions set forth in clauses (c) through (g), inclusive, of Section 3.03 of the Extended Credit Agreement have been satisfied as of the Amendment Effective Date and, in the case of clauses (c), (e) and (g), setting forth in reasonable detail the calculations required to establish such compliance;
(d) receipt by the Administrative Agent, with a copy for each Bank, of a certificate of an officer of the Borrower acceptable to the Administrative Agent stating that all consents, authorizations, notices and filings required or advisable in connection with this Amendment are in full force and effect, and the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered evidence thereof reasonably satisfactory to it;
(e) receipt by the Administrative Agent and the Syndication Agent (or its counseltheir respective assigns) its executed signature page and by each Bank Party of all fees required to this Agreement at or prior to 12:00 noonbe paid in the respective amounts heretofore mutually agreed, New York City timeand all expenses for which invoices have been presented, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of or before the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Amendment Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(cf) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date receipt by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on and the Closing DateBanks of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), USA PATRIOT Act (BTitle III of Pub. L. 107-56; and
(g) that attached thereto is a true and complete copy of resolutions duly adopted receipt by the Board Administrative Agent of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other all documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated request relating to the Effective Date and signed by a Financial Officer existence of the Borrower, confirming compliance with the conditions precedent set forth corporate authority for and the validity of this Amendment, and any other matters relevant hereto, all in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior substance reasonably satisfactory to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement Bank Parties of the Amendment Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Effectiveness. This Amendment and the amendment and restatement of the Original Credit Agreement as set forth in Section 1 hereof shall become effective on and as of the first date on which (such date being referred to as the “Restatement Effective Date”) that each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) Holdings, (ii) Foreign Holdings, (iii) the Borrower, (iv) Parent, (v) each Subsidiary Other Parent Guarantor, (vi) each Incremental 2018 Term F Lender and other Guarantor, (vii) the Required Lenders and (determined immediately viii) each Extended Maturity Term Lender;
(b) Term Lenders have consented to convert not less than $1,000,000,000 aggregate principal amount of Term Loans made on the Closing Date into Extended Maturity Term Loans (after giving effect to the incurrence prepayment to be made pursuant to Section 2.05(c)(i)(x));
(c) the Initial New Senior Secured Notes Issuance permitted under Section 7.03(w) of the Incremental 2018 Term F Loans and Restated Credit Agreement shall have been consummated or shall be consummated substantially contemporaneously with the use effectiveness of proceeds thereof).this Amendment;
(bd) The the arrangers of this Amendment shall have received the Borrower’s Form 10-K for the fiscal year ended December 31, 2009;
(e) the Administrative Agent shall have received payment from documents and certificates relating to the Borrowerorganization, for the account existence and good standing of each 2021 Term D Lender that shall have unconditionally Loan Party and irrevocably delivered the authorization of the Loan Documents and transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Agent;
(cf) The the Administrative Agent shall have received a favorable written legal opinion of (i) BassSkadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ PLCLLP, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 Loan Parties, addressed to the Lenders, the Administrative Agent, the Collateral Agent, the Incremental Collateral Agent, the Swing Line Lender, each L/C Issuer and each arranger of this Amendment, dated the Restatement Effective Date, in form and substance reasonably satisfactory to the Administrative Agent, which the Loan Parties hereby request such counsel to deliver;
(iig) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as favorable legal opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the good standing Loan Parties incorporated in Bermuda, addressed to the Lenders, the Administrative Agent, the Collateral Agent, the Incremental Collateral Agent, the Swing Line Lender, each L/C Issuer and each arranger of each Loan Party as of a recent datethis Amendment, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, in form and substance reasonably satisfactory to the Second Restatement Effective Date or Administrative Agent, which the Third Loan Parties hereby request such counsel to deliver;
(h) the representations and warranties of Holdings, Foreign Holdings, the Borrower and Parent set forth in Section 6 hereof shall be true and correct as of the Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by a Financial Responsible Officer or the chief executive officer of the Borrower, confirming compliance with the conditions precedent set forth accuracy thereof, which shall be in paragraphs (b) form and (c) of Section 4.01 of substance reasonably satisfactory to the Credit Agreement.Administrative Agent; and
(fi) The the Administrative Agent and the arrangers of this Amendment, as applicable, shall have received all payment of the Amendment Fees and all other amounts due and payable on or prior to the Restatement Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.in connection with this Amendment;
(gj) The Security Documents the First Lien Intercreditor Agreement shall substantially contemporaneously with the effectiveness of this Amendment be in full force and effect on the Effective Date, and entered into by the Collateral Agent Agent, the Incremental Collateral Agent, the directing agent thereunder and a collateral agent on behalf of the secured parties under the New Senior Secured Parties Notes issued on the Restatement Effective Date; and
(k) the Borrower shall have a security interest in substantially contemporaneously with the Collateral effectiveness of this Amendment: (i) make an optional pro rata prepayment of Revolving Credit Loans pursuant to Section 2.05(a)(i) of the type Restated Credit Agreement in an aggregate Dollar Amount equal to not less than 15% of the gross proceeds of the Initial Senior Secured Notes Issuance and priority described (ii) permanently reduce the Revolving Credit Commitments pursuant to Section 2.06(a) of the Restated Credit Agreement in each Security Documentan aggregate amount equal to the prepayment of Loans made pursuant to clause (i) above. Execution and delivery of this Amendment by the Borrower on or prior to the Restatement Effective Date shall be deemed to satisfy the notice requirements of the Restated Credit Agreement in connection with such prepayment and reduction of Revolving Credit Commitments. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement of the Restatement Effective Date Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Freescale Semiconductor Holdings I, Ltd.), Credit Agreement (Freescale Semiconductor Inc)
Effectiveness. This Agreement Amendment shall become effective on and as of the first date on which each of the following conditions precedent set forth in this Section 8 is satisfied or waived (such date, the “Effective Date”):
(a) The Administrative Agent shall have received (and by its execution and delivery hereof hereby confirms that it has received) duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of ParentAmendment from each Loan Party, the BorrowerAdministrative Agent, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence as of the Incremental 2018 Term F Loans and the use of proceeds thereof)date hereof.
(b) The Administrative Agent shall have received payment duly executed joinders and/or supplements to the Security Agreement, each other applicable Collateral Document and the Intercreditor Agreements from the New Borrower, the Existing Borrower, the Existing GP, each of the Brix Entities and each Subsidiary that guarantees the First Lien Facility, in form and substance reasonably satisfactory to the Required Lenders; provided, that for the account avoidance of each 2021 Term D Lender that doubt, such joinders and/or supplements shall cause (x) all guarantors guaranteeing the obligations under the First Lien Facility to guarantee the obligations under the Credit Agreement, and (y) any assets securing the obligations under the First Lien Facility to also secure the obligations under the Credit Agreement.
(c) (i) The IPO shall have unconditionally been consummated and irrevocably delivered the net proceeds thereof shall have been contributed to the New Borrower and (ii) the net proceeds of such IPO shall exceed $75,000,000.
(d) The Reorganization Transactions shall have been, or shall substantially concurrently be, duly completed in accordance with the Master Reorganization Agreement filed as Exhibit 4.5 to the registration statement of Vine Energy Inc. filed with the U.S. Securities and Exchange Commission, Registration No. 333-253366, and each of the Existing GP and each of the Brix Entities shall have become, or shall substantially concurrently become (i) a direct or indirect Domestic Subsidiary of the New Borrower and (ii) not an Excluded Subsidiary.
(e) All amounts required to be paid to the Administrative Agent (or its counsel) its executed signature page any Lender by the Existing Borrower, including costs and expense payable pursuant to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% Section 10.04 of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paidCredit Agreement, shall not be refundable in whole or in parthave been paid.
(cf) The Administrative Agent shall have received received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written opinion of (i) Bass, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ PLCLLP, counsel for Parent to the Loan Parties, to be dated the Effective Date, (y) addressed to the Administrative Agent, the Collateral Agent and the Borrower, substantially Lenders and (z) in form and substance customary for amendments of this type and in any case reasonably satisfactory to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Required Lenders.
(dg) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationincorporation or certificate of formation, including all amendments thereto, of the New Borrower, the Existing Borrower, the Existing GP, each of the Brix Entities and other Loan Party as of the Effective Date that was not a Loan Party prior to the Effective Date, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the applicable state jurisdiction of its organization, in each case and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such Loan Party jurisdiction) of each such Person as of a recent date from such Secretary of State (or other similar official);
(h) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each of the New Borrower, the Existing GP, and each of the Brix Entities, dated the Effective Date and certifying:
(i) that attached thereto is a true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Person as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (Bii) below, ;
(or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (Bii) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent thereofmanaging member or equivalent) of such Loan Party Person authorizing the execution, delivery and performance of the this Amendment or any other Loan Documents Document to which such person Person is or deemed to be a partyparty to as a result of this Amendment, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and on the Effective Date;
(Ciii) that the certificate or articles of incorporation or certificate of formation of such Person has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (g) above;
(iv) as to the incumbency and specimen signature of each officer executing this Agreement Amendment, any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; Person, and
(iiiv) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause subclause (iih) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(ei) The Administrative Agent shall have received a certificatecopies of UCC financing statements reasonably satisfactory to it with respect to the New Borrower, dated the Existing GP, each of the Brix Entities and each other Loan Party as of the Effective Date and signed by that was not a Financial Officer of Loan Party prior to the BorrowerEffective Date, confirming compliance with to be filed on the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit AgreementEffective Date.
(fj) The Administrative Agent shall have received at least three (3) Business Days prior to the Effective Date all Fees documentation and other amounts due information required by regulatory authorities under applicable “know your customer” and payable on or anti-money laundering rules and regulations, including, the Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(gk) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received an officer’s certificate stating that this Amendment and the Borrowersupplements and/or joinders delivered pursuant to Section 8(b) preserve the enforceability of the Credit Agreement, the Incremental 2018 Term F Lenders Guarantee and the other Lenders Collateral Documents and the perfection of the Liens under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingCollateral Documents.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Vine Energy Inc.), Second Lien Credit Agreement (Vine Energy Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is shall have been satisfied or waived (such date, the “Second Amendment Effective Date”):
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement thatfrom the Borrowers, when taken togetherHoldings, bear the signatures of Parenteach other Guarantor, the BorrowerAdministrative Agent, each Subsidiary Guarantor, the Collateral Agent and each Incremental 2018 Term F Loan Lender and the Lenders sufficient to constitute, collectively, the Required Lenders (determined immediately after giving effect to the incurrence Lenders, a duly executed counterpart of the Incremental 2018 Term F Loans and the use this Amendment signed on behalf of proceeds thereof).such party;
(b) The Administrative Agent 2018 Incremental Term Loans shall satisfy all of the requirements of Sections 2.25(c) of the Credit Agreement;
(c) The Borrowers shall have received paid (which payment may be made by deduction from the Borrower, for the account funded amount of 2018 Incremental Term Loans) to each 2021 Incremental Term D Loan Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page party to this Agreement at or prior to 12:00 noonthat funds Incremental Term Loans on the Second Amendment Effective Date, New York City time, on March 5, 2015 (eachas fee compensation for the funding of such Incremental Term Loan Lender’s 2018 Incremental Term Loan, a “Consenting Lender”), an amendment funding fee in an amount equal to 0.050.50% of the aggregate outstanding stated principal amount of such Consenting Incremental Term Loan Lender’s 2021 2018 Incremental Term D Loans;
(d) The Borrowers shall have paid to each existing Lender that is party to this Amendment as a consenting Lender and has submitted its executed signature page hereto to the Administrative Agent no later than 4:00 p.m. (New York City time) on March 28, 2018, a consent fee equal to 0.25% of such existing Lender’s outstanding Term Loans (for the avoidance of doubt, exclusive of 2018 Incremental Term Loans) and Revolving Credit Commitments on the Second Amendment Effective Date;
(e) The Borrowers shall have obtained the required consents (the “Second Lien Limited Consent”) to allow the Dividend Payment from the lenders party to the Second Lien Credit and Guaranty Agreement, dated as of August 28, 2017 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Second Lien Credit Agreement”), by and among Holdings, the Borrowers, LLC Subsidiary, certain Subsidiaries of Holdings party thereto, as Guarantors, the lenders party thereto from time to time, the Administrative Agent and the Collateral Agent, and the Second Lien Limited Consent shall have become effective in accordance with its terms;
(f) all of the representations and warranties contained herein and in Section 4 of the Credit Agreement and in each other Credit Document (in each case, as amended by this Amendment) shall be true and correct in all material respects both immediately before and after giving effect to this Amendment (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Second Amendment Effective Date. Such fees Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be payable have been true and correct in immediately available funds andall material respects (except for those representations and warranties that are qualified by materiality, once paid, which shall not be refundable have been true and correct in whole or in part.all respects) on and as of such earlier date;
(cg) The both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(h) the Administrative Agent shall have received a favorable customary written opinion of (i) Bass, ▇▇▇▇▇ & Day, special U.S. counsel for the Credit Parties, (ii) ▇▇▇▇▇▇ PLCand Calder, special Cayman Islands counsel for Parent and the BorrowerCredit Parties, substantially to (iii) AKD, special Luxembourg counsel for the effect set forth on Exhibit B-1 Credit Parties, (iv) Loyens & Loeff, special Netherlands counsel for the Administrative Agent and (iiv) White & Case LLP, special Hong Kong counsel for the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationAgent, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof addressed to the Administrative Agent on the Closing DateAgent, the First Restatement Collateral Agent and the Lenders (including the Incremental Term Loan Lenders), and dated the Second Amendment Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.;
(ei) The the Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance Funding Notice in accordance with the conditions precedent set forth in paragraphs (bSection 2.25(c)(iii) and (c) of Section 4.01 of the Credit Agreement.; provided that, notwithstanding anything to the contrary in Section 2.25(c)(iii) or any other provision of any Credit Document, the Borrower Representative shall be allowed to deliver such Funding Notice by 1:00 p.m. (New York City time) at least two Business Days in advance of the proposed Credit Date (or such later date or time as is otherwise agreed by the Administrative Agent);
(fj) The the Administrative Agent shall have received a Conversion/Continuation Notice pursuant to Section 2.9 of the Credit Agreement for all Fees outstanding borrowings of initial Term Loans for Interest Periods as selected in such Conversion/Continuation Notice that begins on the Second Amendment Effective Date (the “Existing Term Loans Notice”); it being agreed that the Borrowers shall be permitted to select an Interest Period ending on June 29, 2018, pursuant to such Existing Term Loans Notice; and
(k) all reasonable and documented expenses and other amounts compensation payable to the Incremental Term Loan Lead Arranger and the Administrative Agent, pursuant to Section 10.2 of the Credit Agreement or otherwise, shall have been paid (or netted from the proceeds of the 2018 Incremental Term Loans to the extent agreed by the parties hereto) to the extent earned, due and payable on or owing and otherwise reimbursable pursuant to the terms thereof and, in the case of expenses, invoiced at least two Business Days prior to the Second Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is shall have been satisfied or waived (such date, the “First Amendment Effective Date”):
(a) The the Administrative Agent shall have received from the Borrowers, Holdings, each other Guarantor, the Administrative Agent, the Collateral Agent and each Lender, a duly executed and delivered counterparts counterpart of this Amendment signed on behalf of such party;
(b) all of the representations and warranties contained herein and in Section 4 of the Credit Agreement thatand in each other Credit Document (in each case, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender as amended by this Amendment) shall be true and the Required Lenders (determined correct in all material respects both immediately before and after giving effect to the incurrence this Amendment (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Incremental 2018 Term F Loans First Amendment Effective Date to the same extent as though made on and as of that date, except to the use extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall have been true and correct in all respects) on and as of proceeds thereof).such earlier date;
(bc) The both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) Amendment No. 1 to Second Lien Credit and Guaranty Agreement, dated as of the date hereof, shall have become effective in accordance with its terms;
(e) the Administrative Agent shall have received payment from evidence reasonably satisfactory to it that the Borrower, for the account of each 2021 Term D Lender that shall Borrowers have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, made the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.Lien Prepayment;
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior a customary written opinion of ▇▇▇▇▇ Day, special U.S. counsel for the Credit Parties addressed to the Administrative Agent, the Collateral Agent and the Lenders (including the 2017 Incremental Term Loan Lenders), and dated the First Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.;
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received Funding Notices in accordance with Sections 2.1(d) and 2.2(e) of the BorrowerCredit Agreement, together with a flow of funds memorandum with respect to the 2017 Incremental 2018 Term F Lenders Loans and the Revolving Loans requested on the First Amendment Effective Date and any of the other Lenders under transactions contemplated by this Amendment to occur on the First Amendment Effective Date (including the Second Lien Prepayment);
(h) the Administrative Agent shall have received a Conversion/Continuation Notice pursuant to Section 2.9 of the Credit Agreement for all outstanding borrowings of initial Term Loans (which shall include the pro rata portion of the 2017 Incremental Term Loans as provided above) and all Revolving Loans for Interest Periods as selected in such Conversion/Continuation Notice that begins on the First Amendment Effective Date and such notice (the “Existing Term Loans Notice”); it being agreed that the Borrowers shall be conclusive permitted to select an Interest Period ending on October 31, 2017 and/or December 29, 2017, pursuant to such Existing Term Loans Notice; and
(i) all reasonable and bindingdocumented expenses and other compensation payable to Macquarie Capital (USA) Inc. as sole lead arranger and sole bookrunner for this Amendment and the 2017 Incremental Term Loans (in such capacity, the “Incremental Term Loan Lead Arranger”) and the Administrative Agent, pursuant to Section 10.2 of the Credit Agreement or otherwise, shall have been paid (or netted from the proceeds of the 2017 Incremental Term Loans to the extent agreed by the parties hereto) to the extent earned, due and owing and otherwise reimbursable pursuant to the terms thereof and, in the case of expenses, invoiced at least two Business Days prior to the First Amendment Effective Date.
Appears in 2 contracts
Sources: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Effectiveness. This Agreement shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):) as of the date hereof upon satisfaction of the following conditions precedent:
(a) The Administrative Receipt by the Agent shall have received duly executed and delivered of counterparts of this Agreement that, when taken together, bear the signatures of Parent, executed by the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender the Lenders and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Agent.
(b) The Administrative Receipt by the Agent shall have received payment from of:
(i) Copies of the articles or certificate of incorporation of the Borrower, for together with all amendments, and a certificate of existence, certified by the account appropriate governmental officer in its jurisdiction of each 2021 Term D Lender that incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its bylaws and of its Board of Directors’ resolutions authorizing the execution of the Loan Documents by the Borrower.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall have unconditionally identify by name and irrevocably delivered title and bear the signatures of the officers of the Borrower authorized to the Administrative Agent (or its counsel) its executed signature page to sign this Agreement at and the other Loan Documents, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% the controller of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Borrower, stating, as of the Effective Date. , that (A) no Default or Unmatured Default has occurred and is continuing, (B) the Borrower is in compliance with Section 6.11 and setting forth in reasonable detail and calculation of the ratio set forth therein, determined as of December 31, 2020, and (C) the representations and warranties contained in Article V are true and correct.
(v) A written opinion of counsel to the Borrower, substantially in the form of Exhibit B.
(vi) Evidence, in form and substance satisfactory to the Agent, that the Borrower has obtained all governmental approvals, if any, necessary for it to enter into the Loan Documents, including, without limitation, the approval of the Public Utility Commission of Oregon.
(vii) A Note executed by the Borrower in favor of each Lender that has requested an Note pursuant to Section 2.11.
(viii) Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole other documents as any Lender or in partits counsel may have reasonably requested.
(c) The Administrative Agent and the Lenders shall have received a favorable written opinion of received, at least five (i5) BassBusiness Days prior to the Effective Date, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel all documentation and other information requested by the Agent or any Lender or required by regulatory authorities in order for Parent the Agent and the BorrowerLenders to comply with requirements of any Anti-Money Laundering Laws, substantially including the PATRIOT Act and any applicable “know your customer” rules and regulations to the effect set forth on Exhibit B-1 and extent requested at least ten (ii10) the general counsel of Parent, substantially Business Days prior to the effect set forth in Exhibit B-2Effective Date.
(d) The Administrative Agent Borrower shall have received (i) a certificate as delivered to the good standing of each Loan Party as of Agent, and directly to any Lender requesting the same, a recent date, Beneficial Ownership Certification in relation to it (or a certification that such Borrower qualifies for an express exclusion from the Secretary of State of its state of organization; “legal entity customer” definition under the Beneficial Ownership Regulations) to the extent requested at least ten (ii10) a certificate of the Secretary or Assistant Secretary of each Loan Party dated Business Days prior to the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationDate, in each case of such Loan Party as in effect on the Effective Date and at all times since a date least five (5) Business Days prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees and other amounts due and payable by the Borrower hereunder on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andincluding, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents hereunder. Without limiting the generality of the provisions of Section 10.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be in full force and effect on deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in received notice from such Lender prior to the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the proposed Effective Date and such notice shall be conclusive and bindingspecifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Portland General Electric Co /Or/), Credit Agreement (Portland General Electric Co /Or/)
Effectiveness. This Agreement Except as expressly provided in the next succeeding paragraph of this Section 5, this Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied first above written (such date, the “Amendment No. 1 Effective Date”):) when:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) each Loan Party, the Borrower, (ii) each Subsidiary Guarantor, each Incremental 2018 Term F Lender, (iii) each 2018 Revolving Lender and (iv) lenders under the Existing Credit Agreement that, immediately prior to the effectiveness of this Amendment, constitute the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereofas defined therein).;
(b) The the Administrative Agent and the Lenders (including, without limitation, the 2018 Term Lenders and the 2018 Revolving Lenders) shall have received payment of all fees and expenses required to be paid or reimbursed by the Borrower or any other Loan Party under or in connection with this Amendment and any other Loan Document, including those expenses set forth in Section 10 hereof;
(c) the representations and warranties set forth in Section 4 hereof shall be true and correct as of the Amendment No. 1 Effective Date;
(d) the Administrative Agent shall have received payment from the Borrower, for in accordance with Section 2.3 of the account Restated Credit Agreement, a Notice of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered Borrowing with respect to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonfunding of the 2018 Term Loans and the 2018 Revolving Loans, New York City timeif applicable, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Amendment No. 1 Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(ce) The the Administrative Agent shall have received from the Borrower, in accordance with Section 5.1 of the Existing Credit Agreement, a favorable written opinion notice of prepayment with respect to the prepayment of all the outstanding principal amount of the Initial Term Loans on the Amendment No. 1 Effective Date; and
(f) the conditions set forth in Section 7.1 of the Restated Credit Agreement shall have been satisfied (or waived in accordance with Section 13.12 of the Restated Credit Agreement). Notwithstanding the foregoing, Section 5.1(b) of the Existing Credit Agreement shall be amended and restated as set forth in Section 5.1(b) of Annex A hereto effective immediately upon the Administrative Agent having received counterparts of this Amendment that, when taken together, bear the signatures of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 each Loan Party and (ii) lenders under the general counsel of ParentExisting Credit Agreement that, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date immediately prior to the date effectiveness of such amendment of Section 5.1(b) of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Existing Credit Agreement, constitute the Required Lenders.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.), Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Effectiveness. This Agreement shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Third Restatement Effective Date”):
(a) The Administrative Agent shall have received counterparts hereof duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of by Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Guarantor and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Lenders.
(b) The Administrative Agent shall have received payment from the Borrower, a Borrowing Request for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered Loans to be made on the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonThird Restatement Effective Date, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee setting forth the information specified in an amount equal to 0.05% Section 2.03 of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partThird Restated Credit Agreement.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ PLCLLP, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and B-1, (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2B-2 and (iii) each of the other law firms set forth on Exhibit B-3, in each case in form and substance satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of Parent, the Borrower and (to the extent the concept of good standing is applicable in such jurisdiction) each other Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of Parent, the Borrower and each other Loan Party dated the Third Restatement Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Third Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, below (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement “Effective Date” under the Replacement Revolving Credit Facility and Incremental Term Loan Assumption Agreement dated as of March 6, 2012 (the “First Replacement Effective Date”), as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Third Restatement Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs each of paragraph (bg)(i) and paragraph (ci) of Section 4.01 of the Credit Agreementthis Section.
(f) The Administrative Agent shall have received all Fees a certificate, dated the Third Restatement Effective Date and other amounts due and payable on or prior signed by the chief financial officer of Parent, as to the solvency of Parent and its Subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Third Restatement Effective Date, including upfront fees (which may be in substantially the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan DocumentExhibit C hereto.
(g) (i) The Security Documents Permitted HMA Transaction shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in full force and effect on all material respects in accordance with the Effective Date, and the Collateral Agent on behalf terms of the Secured Parties HMA Merger Agreement.
(ii) The Specified Merger Agreement Representations shall have a security interest be true and correct. “Specified Merger Agreement Representations” means such of the representations made by, or with respect to, the Company and its subsidiaries in the Collateral HMA Merger Agreement as are material to the interests of the type and priority described in each Security Document. The Administrative Agent shall notify Lenders, but only to the Borrower, extent that Parent (or its affiliates) have the Incremental 2018 Term F Lenders and the other Lenders right to terminate its (or their) obligations under the Credit HMA Merger Agreement or to decline to consummate the Permitted HMA Transaction as a result of a breach of any one or more of such representations in the Effective Date and such notice shall be conclusive and bindingHMA Merger Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Community Health Systems Inc)
Effectiveness. This Agreement The terms and conditions of this Amendment shall become effective on and as part of the terms and conditions of the Credit Agreement for any and all purposes on the first date (the “Amendment Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):have been satisfied:
(ai) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) the Required Lenders and (iii) the Administrative Agent, either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence reasonably 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.
(ii) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, Borrower a consent fee payable in Dollars for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered has returned an executed counterpart to this Amendment to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon5:00 p.m., New York City timetime on Wednesday, on March 5June 29, 2015 2011 (eachthe “Consent Deadline” and each such Lender, a “Consenting Lender”), an amendment fee in an amount ) equal to 0.050.15% of the aggregate outstanding principal amount of the Loans and Commitments held by such Consenting Lender’s 2021 Term D Loans Lender as of the Effective Date. Such fees Consent Deadline.
(iii) The Agents shall be payable have received, in immediately available funds andfunds, once paid, shall not be refundable in whole payment or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all costs, fees, out-of-pocket expenses required expenses, compensation and other amounts then due and payable in connection with this Amendment or pursuant to be reimbursed or paid by Section 10.04 of the Borrower hereunder or under any other Loan DocumentCredit Agreement, including, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
(giv) The Security Documents shall be in full force and effect Each Loan Party set forth on the Effective Date, and the Collateral Agent on behalf of the Secured Parties Schedule I hereto shall have entered into a security interest reaffirmation agreement, in form and substance reasonably satisfactory to the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgent.
Appears in 2 contracts
Sources: Credit Agreement (Gates Global Inc.), Credit Agreement (St. Augustine Real Estate Holding LLC)
Effectiveness. This The amendments to the Existing Credit Agreement, the obligations of the Tranche B 2024 Term Lenders to make the Tranche B 2024 Term Loans hereunder, the amendment and restatement of the Existing Credit Agreement and the amendment or amendment and restatement of certain schedules and exhibits thereto and the Collateral Agreement as set forth in Section 1 hereof shall become effective and be completed, in the sequence provided for in such Section, on and as of the first date (the “Twelfth Amendment Effective Date”) on which each of the following conditions precedent is shall have been satisfied (such date, or waived in accordance with Section 9.02 of the “Effective Date”Existing Credit Agreement):
(a) The Administrative Agent (or its counsel) shall have received duly executed from (i) ▇▇▇▇▇ ▇, the Borrower and delivered each Subsidiary Loan Party, (ii) the Administrative Agent and (iii) each institution that is to become a Tranche B 2024 Term Lender either (A) counterparts of this Amendment Agreement that, when taken together, bear the signatures signed on behalf of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders such party or (determined immediately after giving effect B) written evidence satisfactory to the incurrence Administrative Agent (which may include a fax or electronic transmission of the Incremental 2018 Term F Loans and the use a signed signature page of proceeds thereof)this Amendment Agreement) that each such party has signed a counterpart of this Amendment Agreement.
(b) The Administrative Agent Agent, Bank of America, N.A. and Citigroup Global Markets Inc., as joint lead arrangers and joint bookrunning managers for the Tranche B 2024 Term Loans (in such capacities, the “Lead Arrangers”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Barclays Bank PLC, ▇▇▇▇▇▇▇ Sachs Bank USA, Credit Suisse Securities (USA) LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as joint bookrunning managers for the Tranche B 2024 Term Loans (in such capacity, together with the Lead Arrangers, the “Arrangers”), shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered favorable written opinions (addressed to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonAgent, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of Arrangers and the other parties hereto and dated the Twelfth Amendment Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower, (ii) the Chief Legal Officer or an Assistant General Counsel of Level 3, (iii) Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLCLLP, Delaware local counsel, and (iv) ▇▇▇▇▇▇ ▇▇▇▇▇ & Bockius LLP, regulatory counsel for Parent and the Borrower, substantially covering such matters relating to the effect set forth on Exhibit B-1 Loan Parties, the Loan Documents and the transactions contemplated by this Amendment Agreement as the Administrative Agent or the Lead Arrangers shall reasonably request.
(iic) The Administrative Agent and the general Lead Arrangers shall have received such documents and certificates as the Administrative Agent, the Lead Arrangers or their counsel of Parent, substantially may reasonably request relating to the effect set forth organization, existence and good standing of each Loan Party, the authorization by the Loan Parties of the transactions contemplated hereby and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby, all in Exhibit B-2form and substance reasonably satisfactory to the Administrative Agent, the Lead Arrangers and their counsel.
(d) The Administrative Agent and the Lead Arrangers shall have received a certificate signed by a Financial Officer of ▇▇▇▇▇ ▇, dated the Twelfth Amendment Effective Date, confirming satisfaction of the condition set forth in paragraph (e), certifying that the representations and warranties set forth in Section 4 hereof (in each case, substituting all references in Section 4 to the “Existing Credit Agreement” with references to the “Restated Credit Agreement” and all references in Section 4 to the “date hereof” with references to the “Twelfth Amendment Effective Date”) are true and correct as of the Twelfth Amendment Effective Date.
(e) Subject to Section 2 hereof, the Guarantee and Collateral Requirement shall have been satisfied.
(f) The Administrative Agent, the Arrangers and the Tranche B 2024 Term Lenders shall have received all fees and other amounts due and payable to them on or prior to the Twelfth Amendment Effective Date, including the reimbursement or payment of all reasonable out-of-pocket expenses for which reasonably detailed invoices have been presented prior to the Twelfth Amendment Effective Date (including the reasonable fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Administrative Agent and the Lead Arrangers) incurred in connection with this Amendment Agreement.
(g) The Administrative Agent and the Lead Arrangers shall have received (i) either (A) a completed (x) perfection certificate as to in the good standing form of Annex III hereto (the “Twelfth Amendment Effective Date Perfection Certificate”) and (y) perfection certificate in the form of Annex III hereto (the “Twelfth Amendment Effective Date Loan Proceeds Note Perfection Certificate”), each Loan Party as of dated the Twelfth Amendment Effective Date and signed by a recent dateFinancial Officer, from the Secretary of State of its state of organization; in each case, together with all attachments contemplated thereby, or (iiB) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Twelfth Amendment Effective Date and signed by a Financial Officer (which certificate may be combined with the certificate referred to in paragraph (d) above) confirming that as of the BorrowerTwelfth Amendment Effective Date there have been no changes to the information required to be set forth in the Annual Perfection Certificate and the Annual Loan Proceeds Note Perfection Certificate since the dates of the Annual Perfection Certificate and Annual Loan Proceeds Note Perfection Certificate most recently delivered to the Administrative Agent and (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Twelfth Amendment Effective Date Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent and the Lead Arrangers that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.05 of the Restated Credit Agreement or have been released.
(h) The Administrative Agent and the Lead Arrangers shall have received a certificate signed by the chief financial officer of ▇▇▇▇▇ ▇, confirming dated the Twelfth Amendment Effective Date, certifying (i) with respect to the incurrence of the Tranche B 2024 Term Loans, as to compliance with the conditions precedent Existing Credit Agreement, the Existing Notes (including the Existing Notes set forth in paragraphs (b) the last sentence of the definition thereof in the Restated Credit Agreement), the indentures governing such Existing Notes and any other material Indebtedness of Level 3 and its Subsidiaries and (cii) of Section 4.01 that, immediately following the making of the Credit Tranche B 2024 Term Loans on the Twelfth Amendment Effective Date and after giving effect to the application of the proceeds of the Tranche B 2024 Term Loans and the other transactions contemplated by this Amendment Agreement, (A) the fair value of the assets of Level 3 and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (B) the present fair saleable value of the property of Level 3 and its Subsidiaries, on a consolidated basis, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (C) Level 3 and its Subsidiaries on a consolidated basis, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (D) Level 3 and its Subsidiaries, on a consolidated basis, will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted following the Twelfth Amendment Effective Date.
(fi) The At least 2 Business Days prior to the Twelfth Amendment Effective Date, in the case of Eurodollar Loans (it being understood and agreed that the Tranche B 2024 Term Lenders are hereby deemed to have consented to such 2 Business Day period), or at least one Business Day prior to the Twelfth Amendment Effective Date, in the case of ABR Loans, the Administrative Agent shall have received all Fees a fully completed and other amounts due executed notice of borrowing with respect to the Tranche B 2024 Term Loans, together with a break-funding letter agreement in form and payable on or substance reasonably satisfactory to the Administrative Agent and the Lead Arrangers.
(j) At least 3 Business Days prior to the Twelfth Amendment Effective Date, the Lead Arrangers shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including upfront fees the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (which may be in Title III of Pub. L. 107-56) (the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and“PATRIOT Act”), that is requested at least 5 Business Days prior to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Twelfth Amendment Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower▇▇▇▇▇ ▇, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement of the Twelfth Amendment Effective Date Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement, Amendment Agreement (Level 3 Communications Inc)
Effectiveness. This Agreement shall become effective on and as The occurrence of the date on which each Effective Date is subject to the satisfaction (or waiver) of only the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 shall have received from (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans I) all Lenders hereunder as of the Effective Date. Such fees , (II) the Administrative Agent, (III) each Issuing Lender and (IV) the Borrower either (i) a counterpart of this Agreement signed on behalf of such party or (ii) customary written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) at least three (3) days prior to the Effective Date, the Borrower shall be payable have provided the documentation and other information about the Borrower to the Administrative Agent that is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the U.S. Patriot Act and the Beneficial Ownership Regulation, to the extent such information was reasonably requested by the Arrangers or a Lender in immediately available funds and, once paid, shall not be refundable in whole or in part.writing at least ten (10) Business Days prior to the Effective Date;
(c) The the Borrower shall have delivered to the Administrative Agent an officer’s certificate, substantially in the form attached hereto as Exhibit G, dated as of the Effective Date, signed by an Authorized Officer of the Borrower, certifying that (x) on the Effective Date, no Default or Unmatured Default has occurred and is continuing and (y) the representations and warranties contained in Article 5 (other than the representations and warranties set forth in Sections 5.14 and 5.15) are true and correct in all material respects (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties are true and correct in all respects) as of the Effective Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have received been true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall have been true and correct in all respects) on and as of such earlier date;
(d) the Borrower shall have delivered to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Bass▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ PLCreasonably acceptable to the Administrative Agent;
(e) each Note requested from the Borrower in writing at least five (5) Business Days prior to the Effective Date by any Lender pursuant to Section 2.13 shall have been executed by the Borrower;
(f) the Borrower shall have paid all fees, costs and expenses due and payable to the Administrative Agent, for itself and on behalf of the Lenders, or its counsel on the Effective Date and (in the case of expenses) for Parent which the Borrower has received an invoice at least three (3) Business Days prior to the Effective Date (provided that such invoice may reflect an estimate and/or only costs processed to date and shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent, including with respect to fees, costs or expenses incurred prior to the Effective Date);
(g) the Borrower shall have delivered to the Administrative Agent copies of the certificate of incorporation of the Borrower, substantially to the effect set forth on Exhibit B-1 together with all amendments thereto, and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of good standing for the Borrower, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(h) the Borrower shall have delivered to the Administrative Agent copies, certified by the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy Borrower, of (1) the Borrower’s by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as its Board of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date Directors’ resolutions and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board or actions of Directors (or equivalent thereof) of such Loan Party any other body authorizing the execution, delivery and performance execution of the Loan Documents to which such person it is a party, party and a certification that such resolutions there have not been modified, rescinded or amended and are in full force and effect and (C) as no changes to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a its certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate incorporation provided pursuant to clause (ii) aboveSection 4.01(g); and (iv) such other documents as the Administrative Agent may reasonably request.and
(ei) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to or substantially concurrently with the Effective Date, including upfront fees all commitments under the Existing Credit Agreement shall have been or will be terminated and the obligations (which may except for contingent obligations and obligations in respect of any outstanding letters of credit) due or outstanding thereunder have been or will be repaid in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, full to the extent invoicedPersons to whom such amounts are owed thereunder, reimbursement and all commitments to extend credit thereunder shall have been or payment will be terminated. The occurrence of all out-of-pocket expenses required the Effective Date shall be confirmed by a written notice from the Administrative Agent to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingevidence of the occurrence thereof.
Appears in 2 contracts
Sources: Credit Agreement (Dick's Sporting Goods, Inc.), Credit Agreement (Dick's Sporting Goods, Inc.)
Effectiveness. This Agreement shall become effective on The effectiveness of this Amendment and as the obligations of each Repriced Term Lender hereunder are subject to the date on which each satisfaction of the following conditions precedent precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the day on which such conditions are satisfied or waived is satisfied (such date, herein referred to as the “Third Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, 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 the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent shall have received duly and its legal counsel:
(i) executed and delivered counterparts of this Agreement that, when taken together, bear Amendment;
(ii) executed Lender Addenda by the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Continuing Lenders and the Required Lenders Additional Term Lenders;
(determined immediately iii) such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (including a certificate attaching the Organization Documents of each Loan Party) as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment;
(iv) an opinion from Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties; and
(v) a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower (after giving effect to the incurrence of Third Repriced Term Loans) substantially in the Incremental 2018 Term F Loans and form delivered on the use of proceeds thereof)Closing Date.
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally All fees and irrevocably delivered expenses due to the Administrative Agent (or its counsel) its executed signature page required to this Agreement at or prior to 12:00 noon, New York City time, be paid on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Third Amendment Effective Date. Such fees Date shall be payable in immediately available funds and, once have been paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent at least three Business Days prior to the Third Amendment Effective Date all documentation and other information about the Borrower and the BorrowerGuarantors required under applicable “know your customer” and anti-money laundering rules and regulations, substantially including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 days prior to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Third Amendment Effective Date.
(d) The Administrative Agent conditions set forth in Section 4.02 of the Credit Agreement shall have received (i) a certificate as to the good standing of each Loan Party been satisfied as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Third Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Third Amendment Effective Date and signed by a Financial Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4.02(i) and 4.02(ii) of the Credit Agreement. Without limiting the generality of the provisions of Section 9.03(b) of the Credit Agreement for purposes of determining compliance with the conditions precedent set forth specified in paragraphs (b) and (c) of this Section 4.01 of 5, each Repriced Term Lender that has signed a Lender Addendum shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or notice from such Repriced Term Lender prior to the proposed Third Amendment Effective Date specifying its objection thereto. Notwithstanding any other provisions of this Amendment to the contrary, the Administrative Agent may appoint a fronting lender to act as the sole Additional Term Lender for purposes of facilitating funding on the Third Amendment Effective Date. Accordingly, including upfront fees any Lender Addendum (which may be in the form of original issue discountAdditional Term Lender) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement submitted by or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of an Additional Term Lender other than such fronting lender will be deemed ineffective unless accepted by the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingin its sole discretion.
Appears in 2 contracts
Sources: Credit Agreement (ESH Hospitality, Inc.), Credit Agreement (ESH Hospitality, Inc.)
Effectiveness. This Agreement Amendment shall become be effective on and as of the date on which each first written above upon receipt by the Operations Agent of the following conditions precedent is satisfied (such date, the “Effective Date”):following:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered counterparts by each of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender the Banks and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Operations Agent;
(b) The Administrative as to the incumbency of, and bearing manual specimen signatures of, the officers and other representatives of the Borrower who are authorized to execute and take actions under this Amendment and the Loan Documents on behalf of the Borrower (or a certification that no changes have been made to the certification of incumbency contained in paragraph (h) of that Secretary’s Certificate dated as of October 26, 2023 (the “Ninth Amendment Certificate”) delivered to the Operations Agent shall have received payment from by the Borrower on October 26, 2023 pursuant to Section 4(b) of the Amendment Agreement No. 9 dated as of October 26, 2023 (the “Ninth Amendment”) by and among the Borrower, for the account Banks and the Operations Agent) and the individuals set forth therein remain authorized to execute and take actions under the Amendment and the Loan Documents on behalf of each 2021 Term D Lender the Borrower), and certifying and attaching copies of (i) the Charter Documents of the Borrower (or a certification that shall no changes have unconditionally and irrevocably been made to the Charter Documents delivered to the Administrative Operations Agent by the Borrower on the Effective Date pursuant to Section 3.01(f) of the Credit Agreement), (ii) the written resolutions of the Board of Trustees of the Borrower, authorizing the transactions contemplated hereby, (iii) the current Prospectus of the Borrower as then in effect (or its counsela certification that no changes have been made to the Prospectus delivered to the Operations Agent by the Borrower on October 26, 2023 pursuant to Section 4(b) its executed signature page of the Ninth Amendment and attached as Exhibit A to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”the Ninth Amendment Certificate), an amendment fee in an amount equal to 0.05% (iv) the investment advisory agreement and any other investment management or submanagement agreements of the aggregate outstanding principal amount of Borrower as currently in effect (or a certification that no changes have been made to such Consenting Lender’s 2021 Term D Loans as investment advisory agreement and any other investment management or submanagement agreements delivered to the Operations Agent by the Borrower on the Effective Date pursuant to Section 3.01(f)(i) of the Credit Agreement), and (v) the custodian agreement of the Borrower currently in effect (or a certification that no changes have been made to the custodian agreement delivered to the Operations Agent by the Borrower on the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Date pursuant to Section 3.01(f)(i) of the Credit Agreement);
(c) The Administrative receipt by the Operations Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and a copy of the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of trust of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationTrust, with all amendments, certified as of a recent date by the Secretary of State of the applicable state State of organization, in each case of such Loan Party as in effect on the Effective Date Delaware; and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovea legal existence and good standing certificate for the Trust issued by the Secretary of State of the State of Delaware, dated as of a recent date;
(d) a non-refundable upfront fee, payable in cash to the Operations Agent for the respective accounts of the Banks, of five (5) basis points on the Aggregate Commitment Amount; and (iv) such other documents as the Administrative Agent may reasonably request.and
(e) The Administrative all other fees payable to the Operations Agent shall have received a certificate, dated pursuant to the Effective Date and signed by a Financial Officer terms of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective DateLoan Documents, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentfee letter.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Amendment Agreement No. 10 (Baron Select Funds), Amendment Agreement No. 10 (Baron Select Funds)
Effectiveness. This Agreement shall become effective on and as of the date on upon which each of the following conditions precedent is has been satisfied (such date, the “Effective Date”):
(a) The Administrative Agent shall have has received duly executed and delivered counterparts of this Agreement thatduly executed on behalf of each New Lender, when taken togethereach Existing Lender, bear each Swingline Lender, each Issuing Bank and the signatures Borrower;
(b) The Borrower shall have delivered to the Administrative Agent, a certificate of Parent, the Borrower dated as of the Effective Date and executed by a responsible officer of the Borrower, each Subsidiary Guarantor(i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to the Maturity Extension and (ii) certifying that, each Incremental 2018 Term F Lender (x) before and the Required Lenders (determined immediately after giving effect to the incurrence Maturity Extension, the representations and warranties contained in Article III of the Incremental 2018 Term F Loans Credit Agreement are true and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally correct on and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees , except to the extent such representations and warranties specifically refer to an earlier date (in which case, the Borrower shall be payable in immediately available funds andcertify that the such representations and warranties were true and correct on and as of such earlier date), once paid(y) before and after giving effect to the Maturity Extension and the Amendments, shall not be refundable in whole no Default or in part.Event of Default exists or will exist, and (z) no Material Adverse Change has occurred or is continuing;
(c) The Administrative Agent shall have received a favorable written opinion of (i) BassAgent, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent the Lenders and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent Arrangers shall have received all Fees fees and other amounts due and payable to each such Person (including, without limitation, the fees and expenses of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as counsel to the Administrative Agent) on or prior to the Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andincluding, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.Borrowers pursuant to the Credit Agreement; and
(gd) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties Each Exiting Lender shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under received all payments pursuant to the Credit Agreement (including payments of principal, interest, fees and other amounts) due and payable to such Exiting Lender as of the Effective Date and such notice shall be conclusive and bindingafter giving effect to Section 1 of this Agreement.
Appears in 2 contracts
Sources: Third Amendment and Maturity Extension Agreement, Third Amendment and Maturity Extension Agreement (Anadarko Petroleum Corp)
Effectiveness. This Agreement Amendment shall become effective on and as of the date (the “Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement thatAmendment which, when taken together, bear the signatures of Parent, the Borrowereach Loan Party, each Subsidiary GuarantorExtending Revolving Credit Lender, each Incremental 2018 Term F Lender and Additional Revolving Credit Lender, the Required Lenders (determined immediately after collectively, the “Requisite Lenders”), and the Administrative Agent.
(i) After giving effect to the incurrence this Amendment, each of the Incremental 2018 Term F Loans representations and the use warranties set forth in Section 6 of proceeds thereof).
this Amendment shall be true and correct in all material respects and (bii) The Administrative Agent no Default or Event of Default shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally occurred and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans be continuing as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion certificate, dated as of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent the Effective Date and signed by a Responsible Officer of the U.S. Borrower, substantially to confirming compliance with the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect conditions precedent set forth in Exhibit B-2paragraph (b) of this Section 7.
(d) The Administrative Agent shall have received (i) a certificate as to favorable written opinion of (x) the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate General Counsel or Deputy General Counsel of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) U.S. Borrower and (2y) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Holdings and the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationU.S. Borrower, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof addressed to the Administrative Agent on the Closing DateAgent, the First Restatement Effective DateLenders (including the Additional Revolving Credit Lenders) and the Issuing Banks, (ii) board resolutions and (iii) customary certificates, in each case, substantially consistent with those delivered on the Second Restatement Effective Date or Date. Holdings and the Third Restatement Effective Date, as applicable, certifying that no U.S. Borrower hereby request such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of counsel to deliver such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestopinion.
(e) The Administrative Agent and each Additional Revolving Credit Lender shall have received a certificate, dated all documentation and other information reasonably requested by them at least five Business Days prior to the Effective Date that is required by regulatory authorities under applicable “know your customer” and signed by a Financial Officer of anti-money laundering rules and regulations, including the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit AgreementUSA PATRIOT Act.
(f) The Administrative Agent shall have received (on behalf of itself, the Extending Revolving Credit Lenders and the Additional Revolving Credit Lenders) all Fees fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender all Extension Fees and all Upfront Fees and, to the extent invoicedinvoiced at least one Business Day prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Cbre Group, Inc.)
Effectiveness. This Agreement Amendment shall become be effective on and as of the date on which each Amendment Effective Date upon satisfaction of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Receipt by the Administrative Agent shall have received of copies of this Amendment duly executed and delivered counterparts of this Agreement that, when taken together, bear by the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Borrower and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Lenders.
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to Receipt by the Administrative Agent (of a certificate executed by a Financial Officer or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% Authorized Officer of the aggregate outstanding principal amount Borrower on the date hereof stating that (i) the Borrower and each of such Consenting Lender’s 2021 Term D Loans its Subsidiaries are in compliance in all material respects with all existing material financial obligations and all material Requirements of Law, (ii) there does not exist any material order, decree, judgment, ruling or injunction or any material pending or threatened action, suit, investigation or proceeding against the Borrower or any of its Subsidiaries, except as disclosed in the SEC Reports and the Quarterly Reports on Form 10-Q of the Effective Date. Such fees shall Borrower for the Fiscal Quarters ended June 30, 2022 and September 30, 2022, and (iii) (A) the Borrower is Solvent, (B) no Default or Event of Default exists, (C) all representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects, and (D) since May 20, 2022, except as disclosed in the SEC Reports and the Quarterly Reports on Form 10-Q of the Borrower for the Fiscal Quarters ended June 30, 2022 and September 30, 2022, there has been no development or event relating to or affecting the Borrower or any of its Subsidiaries that has had or could be payable reasonably expected to have a Material Adverse Effect and no Material Adverse Change has occurred in immediately available funds andthe facts and information regarding the Borrower and its Subsidiaries as disclosed in the SEC Reports and the Quarterly Reports on Form 10-Q of the Borrower for the Fiscal Quarters ended June 30, once paid2022 and September 30, shall not be refundable in whole or in part2022.
(c) The Receipt by the Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and evidence satisfactory to it that the Borrower, substantially conditions precedent to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect extension set forth in Exhibit B-2Section 2 above shall have been satisfied in accordance with the requirements of Section 2.5 of the Credit Agreement except to the extent waived hereunder.
(d) The Administrative Agent Borrower shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof paid to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true all fees and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery expenses due and performance of the Loan Documents payable to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent and the Lenders on the Amendment Effective Date; it being understood and agreed that the Borrower has agreed to pay each Approving Lender a fee equal to 0.04% of such Approving Lender’s Commitment, provided that such fee shall have received a certificate, dated be payable only in the Effective event that the Maturity Date and signed by a Financial Officer of the Borrower, confirming compliance Extension is approved in accordance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 2.5 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Public Service Co of New Mexico), Credit Agreement (Public Service Co of New Mexico)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Fifth Amendment Effective Date”):
(a) The on which the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing documents or other items, each Subsidiary Guarantordated the Fifth Amendment Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party), including receipt of consent from (i) each Incremental 2018 Term F Lender Extending Bank, (ii) each Non-Extending Bank, (iii) each Reducing Bank, and (iv) the Required Lenders (determined immediately after giving effect to Banks under the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Existing Credit Agreement;
(b) The receipt by the Administrative Agent shall have received payment from of an opinion of the General Counsel of the Borrower, for substantially in the account form of each 2021 Term D Lender Exhibit F to the Existing Credit Agreement, provided that shall have unconditionally and irrevocably delivered an enforceability opinion under New York law, that is reasonably acceptable to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonAgent, shall be furnished by the Borrower’s New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Basscounsel, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLCLLP, counsel for Parent subject to customary assumptions, qualifications and limitations;
(c) receipt by the BorrowerAdministrative Agent of a certificate signed by any one of the Chief Financial Officer, substantially the Chief Executive Officer, the Treasurer, an Assistant Secretary-Treasurer, the Controller or the Vice President, Capital Markets Relations of the Borrower to the effect set forth on Exhibit B-1 and (ii) that the general counsel of Parent, substantially to the effect conditions set forth in Exhibit B-2.clauses (c) through (g), inclusive, of Section 3.03 of the Amended Credit Agreement have been satisfied as of the Fifth Amendment Effective Date and, in the case of clauses (c), (d) and (g), setting forth in reasonable detail the calculations required to establish such compliance;
(d) The receipt by the Administrative Agent of a certificate of an officer of the Borrower acceptable to the Administrative Agent stating that all consents, authorizations, notices and filings required or advisable in connection with this Amendment are in full force and effect, and the Administrative Agent shall have received evidence thereof reasonably satisfactory to it;
(ie) a certificate as receipt by the Administrative Agent and the Syndication Agent (or their respective permitted assigns) and by each Bank Party of all fees, including all such fees that are owed to each Reducing Bank and Non-Extending Bank required to be paid in the respective amounts heretofore mutually agreed in writing, and all expenses required to be reimbursed pursuant to the good standing terms of each Loan Party as the Existing Credit Agreement and for which invoices have been presented, at least one (1) business day prior to the Fifth Amendment Effective Date;
(f) receipt by the Administrative Agent and the Banks of a recent date, from Beneficial Ownership Certification on the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Fifth Amendment Effective Date and certifying all documentation and other information required by regulatory authorities under applicable “know your customer” and anti- money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (A) that attached thereto is a true and complete copy Title III of (1) the byPub. L. 107-laws (or equivalent thereof56) and the FinCEN beneficial ownership regulations under the Beneficial Ownership Regulation; and
(2g) the certificate or articles of incorporation, certified as of a recent date receipt by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other all documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated request relating to the Effective Date and signed by a Financial Officer existence of the Borrower, confirming compliance with the conditions precedent set forth corporate authority for and the validity of this Amendment all in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior substance reasonably satisfactory to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement Bank Parties of the Fifth Amendment Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Effectiveness. This (i) The Existing Credit Agreement became effective on the Effective Date and (ii) this Agreement shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Amendment Effective Date”):
(a) The on which the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing documents or other items, each Subsidiary Guarantor, dated the Amendment Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts hereof signed by each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and parties hereto (or, in the use case of proceeds thereofany party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it in facsimile transmission, electronic submission or other writing from such party of execution of a counterpart hereof by such party).;
(b) The receipt by the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender Bank that shall have unconditionally and irrevocably delivered to has requested a Note of a duly executed Note dated on or before the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% Amendment Effective Date complying with the provisions of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Section 2.05;
(c) The receipt by the Administrative Agent shall have received a favorable written of an opinion of (i) Bassthe General Counsel of the Borrower, substantially in the form of Exhibit C hereto, provided that an enforceability opinion under New York law, that is reasonably acceptable to the Administrative Agent, shall be furnished by the Borrower’s New York counsel, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLCLLP, counsel for Parent subject to customary assumptions, qualifications and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.limitations;
(d) The receipt by the Administrative Agent of a certificate signed by any one of the Chief Financial Officer, the Chief Executive Officer, an Assistant Secretary-Treasurer, the Controller or the Vice President, Capital Markets Relations of the Borrower to the effect that the conditions set forth in clauses (c) through (g), inclusive, of Section 3.03 have been satisfied as of the Amendment Effective Date and, in the case of clauses (c), (e) and (g), setting forth in reasonable detail the calculations required to establish such compliance;
(e) receipt by the Administrative Agent, with a copy for each Bank, of a certificate of an officer of the Borrower acceptable to the Administrative Agent stating that all consents, authorizations, notices and filings required or advisable in connection with this Agreement are in full force and effect, and the Administrative Agent shall have received evidence thereof reasonably satisfactory to it;
(if) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date receipt by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent and the Syndication Agent (or their respective assigns) and by each Bank Party of all fees required to be paid in the respective amounts heretofore mutually agreed in writing, and all expenses for which invoices have been presented, on or before the Closing Date, the First Restatement Amendment Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), ;
(Bg) that attached thereto is a true and complete copy of resolutions duly adopted receipt by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent and the Banks of all documentation and other information requested by the Administrative Agent or such Bank and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56); and
(h) receipt by the Administrative Agent of all documents the Required Banks may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated request relating to the Effective Date and signed by a Financial Officer existence of the Borrower, confirming compliance with the conditions precedent set forth corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior substance reasonably satisfactory to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement Bank Parties of the Amendment Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Effectiveness. This Agreement shall become effective on and as of the date (the "Third Restatement Effective Date") on which each of (i) the following conditions precedent is satisfied (such date, the “Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary GuarantorAgent, each Incremental 2018 Bank with a C Term F Lender Loan Commitment, each Bank with a B Revolving Loan Commitment, and the Required Lenders Banks (determined immediately after before the occurrence of the Third Restatement Effective Date and without giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(bthereto) The Administrative Agent shall have received payment from signed a copy hereof (whether the Borrower, for the account of each 2021 Term D Lender that same or different copies) and shall have unconditionally and irrevocably delivered the same to the Administrative Agent at its Notice Office or, in the case of the Banks, shall have given to the Administrative Agent telephonic (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”confirmed in writing), an amendment fee written or facsimile transmission notice (actually received) in an amount equal accordance with Section 12.03 at such office that the same has been signed and mailed to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 it and (ii) the general counsel of Parent, substantially conditions contained in Sections 4 and 5 are met to the effect set forth in Exhibit B-2.
satisfaction of the Agents and the Required Banks (d) The determined immediately after the occurrence of the Third Restatement Effective Date). Unless the Administrative Agent shall has received actual notice from any Bank that the conditions contained in Sections 4 and 5 have received (i) a certificate as not been met to its satisfaction, upon the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate satisfaction of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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 condition described in clause (Bi) belowof the immediately preceding sentence and upon the Administrative Agent's good faith determination that the conditions described in clause (ii) of the immediately preceding sentence have been met, (orthen the Third Restatement Effective Date shall have been deemed to have occurred, if such by-laws (regardless of any subsequent determination that one or equivalent thereof) or certificate or articles more of incorporation have the conditions thereto had not been amended met (although the occurrence of the Third Restatement Effective Date shall not release the Borrower from any liability for failure to satisfy one or modified since more of the applicable conditions contained in Section 4 or 5). To the extent any delivery thereof Banks under and as defined in the Second Amended and Restated Credit Agreement shall have any rights thereunder with respect to matters occurring prior to the Administrative Agent on the Closing Date, the First Third Restatement Effective DateDate (including without limitation as to obligations with respect to loans outstanding thereunder, interest or fees owing thereunder or any costs under Sections 1.10, 1.11, 1A.06 or 3.04 of the Second Amended and Restated Credit Agreement), neither the Third Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no repayment of any amounts owing to such amendment Banks shall limit or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) otherwise affect any of such Loan Party authorizing Banks' rights under the execution, delivery Second Amended and performance of the Loan Documents to which Restated Credit Agreement and such person is a party, and that such resolutions have not been modified, rescinded or amended and are Banks' rights shall remain in full force and effect and (C) as to if the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Third Restatement Effective Date and signed by a Financial Officer of the Borrower, confirming compliance has not occurred with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or respect to matters occurring prior to the Third Restatement Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Hq Global Holdings Inc), Credit Agreement (Frontline Capital Group)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Third Amendment Effective Date”):
(a) The on which the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing documents or other items, each Subsidiary Guarantordated the Third Amendment Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party), including receipt of consent from (i) each Incremental 2018 Term F Lender Extending Bank, (ii) each Non-Extending Bank and (iii) the Required Lenders (determined immediately after giving effect to Banks under the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Existing Credit Agreement;
(b) The receipt by the Administrative Agent of an opinion of the General Counsel of the Borrower, substantially in the form of Exhibit F to the Existing Credit Agreement, provided that an enforceability opinion under New York law, that is reasonably acceptable to the Administrative Agent, shall be furnished by the Borrower’s New York counsel, Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, subject to customary assumptions, qualifications and limitations;
(c) receipt by the Administrative Agent of a certificate signed by any one of the Chief Financial Officer, the Chief Executive Officer, the Treasurer, an Assistant Secretary-Treasurer, the Controller or the Vice President, Capital Markets Relations of the Borrower to the effect that the conditions set forth in clauses (c) through (g), inclusive, of Section 3.03 of the Amended Credit Agreement have been satisfied as of the Third Amendment Effective Date and, in the case of clauses (c), (d) and (g), setting forth in reasonable detail the calculations required to establish such compliance;
(d) receipt by the Administrative Agent of a certificate of an officer of the Borrower acceptable to the Administrative Agent stating that all consents, authorizations, notices and filings required or advisable in connection with this Amendment are in full force and effect, and the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered evidence thereof reasonably satisfactory to it;
(e) receipt by the Administrative Agent and the Syndication Agent (or its counseltheir respective permitted assigns) its executed signature page and by each Bank Party of all fees, including such fees that are owed to this each Non-Extending Bank, required to be paid in the respective amounts heretofore mutually agreed in writing, and all expenses required to be reimbursed pursuant to the terms of the Existing Credit Agreement and for which invoices have been presented, at or least one (1) business day prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Third Amendment Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(cf) The receipt by the Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as Banks of a recent date, from Beneficial Ownership Certification on the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Third Amendment Effective Date and certifying all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (A) that attached thereto is a true and complete copy Title III of (1) the byPub. L. 107-laws (or equivalent thereof56) and the FinCEN beneficial ownership regulations under the Beneficial Ownership Regulation; and
(2g) the certificate or articles of incorporation, certified as of a recent date receipt by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other all documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated request relating to the Effective Date and signed by a Financial Officer existence of the Borrower, confirming compliance with the conditions precedent set forth corporate authority for and the validity of this Amendment all in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior substance reasonably satisfactory to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement Bank Parties of the Third Amendment Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Effectiveness. This Agreement shall become effective, and the amendments provided for herein shall be effective on and as provided herein as of the date on which each Effective Date, upon the satisfaction of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this Agreement, duly and validly executed and delivered counterparts by duly authorized officers of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantorthe Guarantors, each Incremental 2018 Term F the Administrative Agent, the Issuing Lender, the Swing Line Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Lenders.
(b) The Administrative Agent shall have received payment a secretary’s certificate from the BorrowerBorrower certifying (A) officers’ incumbency, for (B) the account resolutions of each 2021 Term D Lender the Board of Directors of the Borrower authorizing this Agreement, and (C) true and complete copies of its organizational documents or that shall no changes have unconditionally and irrevocably delivered occurred to such organizational documents since copies of such documents were certified to the Administrative Agent (or its counsel) its executed signature page to this with the closing of the Credit Agreement at or prior to 12:00 noon, New York City time, on March 531, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part2008.
(c) The Administrative Agent No Default, other than the Existing Default, shall have received a favorable written opinion occurred and be continuing as of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to Effective Date or as of the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2date this Agreement is entered into.
(d) The Administrative Agent representations and warranties in this Agreement shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a be true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, correct in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestmaterial respects.
(e) The Borrower shall have paid to the Administrative Agent shall have received a certificate(i) for the account of each Lender, dated the Effective Date and signed by a Financial Officer an amendment fee equal to 0.50% of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs sum of (a) such Lender’s Revolving Commitment plus (b) such Lender’s pro rata share of the outstanding principal amount of all Term Advances; and (cii) of Section 4.01 all fees and expenses of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees Agent’s outside legal counsel and other amounts due and payable consultants pursuant to all invoices presented for payment on or prior to the Effective Date. The Borrower and ▇▇▇▇▇ Fargo Bank, including N.A. hereby acknowledge and agree that the amendment fee provided for in clause (i) is the upfront fees (which may be fee referred to in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by fee letter between the Borrower hereunder or under any other Loan Documentand ▇▇▇▇▇ Fargo Bank, N.A. dated March 6, 2009.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Flotek Industries Inc/Cn/), Credit Agreement (Flotek Industries Inc/Cn/)
Effectiveness. This Agreement Amendment shall become effective on the date (the “Fourth Amendment Effective Date”) when the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received from each Loan Party party hereto and the Requisite Financial Covenant 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 telecopy or electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) each of the representations and warranties set forth in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on which each such date);
(c) at the time of the following conditions precedent is satisfied (such date, the “Fourth Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed Date and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence Fourth Amendment, no Unmatured Event of the Incremental 2018 Term F Loans and the use Default or Event of proceeds thereof).Default shall exist;
(bd) The the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% Officer’s Certificate of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Company, dated as of the Fourth Amendment Effective Date. Such fees shall be payable , certifying compliance with the requirements set forth in immediately available funds and, once paid, shall not be refundable in whole or in part.
preceding clauses (b) and (c) The Administrative Agent shall have received a favorable written opinion of this Section 4;
(i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (iie) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) either (x) a copy of the certificate as to the good standing or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party party hereto, certified as of a recent date, from date by the Secretary of State of its the state of organization; its organization or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party party hereto dated the Fourth Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of (1) the by-laws (laws, operating agreement or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case similar governing document of such Loan Party as in effect on the Fourth Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, below or (or, if y) there has been no change to such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified governing documents since any delivery thereof last delivered to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred)Agent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, this Fourth Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect and effect, (C) that any attached certificate or articles of incorporation, equivalent organizational document, by-law, operating agreement or similar governing document of such Loan Party have not been amended, and (D) to the extent not previously delivered to the Administrative Agent as to the incumbency and specimen signature of each officer executing this Agreement Fourth Amendment or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (iiiii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.;
(f) The the Company shall have paid to the Administrative Agent shall have received for the benefit of each Requisite Financial Covenant Lender that delivers an executed counterpart of this Amendment no later than 5:00 pm (NY time) on January 21, 2016, a consent fee in an amount equal to 0.10% of the aggregate principal amount of the sum of (i) the Revolving Commitments, (ii) Term Loans A and (iii) Term Euro Loans, as applicable, of such Requisite Financial Covenant Lender as of the Fourth Amendment Effective Date; and
(g) all Fees reasonably incurred and documented costs, fees, expenses (including, without limitation, legal fees and expenses) and other amounts due and compensation payable to the Administrative Agent pursuant to Section 12.4 of the Credit Agreement on or prior to before the Fourth Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoicedinvoiced at least three business days prior to the Fourth Amendment Effective Date unless otherwise agreed, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in been paid to the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingextent earned.
Appears in 2 contracts
Sources: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens Illinois Inc /De/)
Effectiveness. This Sections 1 and 2 of this Agreement shall become effective on the date and as ---------- - time (the "Effective Time") that a counterpart to this Agreement shall have been -------------- executed by each of the date on which parties hereto and each of the following conditions precedent is shall have been satisfied (such dateprovided that the Effective Time may not be later than March 31, the “Effective Date”1997):
(a) The Administrative Agent Vitalink shall have received duly paid HRP a non-refundable $10,000,000 lease modification fee in immediately available funds to reflect the change in guarantors;
(b) Vitalink shall have executed and delivered counterparts of to HRP a Guaranty in the form attached hereto as Exhibit A (the "Vitalink Guaranty"); --------- -----------------
(c) New GranCare shall have executed and delivered to HRP an Assumption Agreement in the form attached hereto as Exhibit B (the "Assumption Agreement," --------- -------------------- and together with this Agreement that, when taken together, bear the signatures of ParentAgreement, the BorrowerVitalink Guaranty and each other agreement, each Subsidiary Guarantorinstrument or other document delivered by any party pursuant to this Section 3, each Incremental 2018 Term F Lender collectively, the "Vitalink Documents"; the Vitalink Documents and --------- ------------------ the Transaction Documents, as amended hereby, are collectively referred to herein as the "Documents"), which Assumption Agreement shall have been accepted --------- by GranCare for the limited purpose specified therein;
(d) the Distribution and the Required Lenders Merger shall have occurred substantially concurrently with the Effective Time, in accordance with the description of the Distribution and Merger in the Schedule 14A;
(determined immediately after e) giving effect to the incurrence of the Incremental 2018 Term F Loans Distribution and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the BorrowerMerger, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as occurrence of the Effective Date. Such fees Time, no Event of Default, or event or condition that with the giving of notice or the lapse of time or both would become an Event of Default, shall have occurred and be continuing under any Document, and all warranties and representations contained in each Vitalink Document shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.true and correct at the Effective Time as if made at such time;
(cf) The Administrative Agent HRP shall have received a favorable written opinion certificate of a senior executive officer of New GranCare and Vitalink confirming satisfaction of the conditions described in paragraphs (id) Bassand (e) above; -------------- ---
(g) HRP shall have received opinions addressed to it, each dated the Effective Time, from counsel to GranCare and New GranCare, and from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ PLC▇▇▇▇, counsel for Parent and to Vitalink, covering the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect matters set forth in Exhibit B-2.Exhibits C and D respectively, and otherwise in form and substance reasonably ---------- - satisfactory to HRP; and
(dh) The Administrative Agent New GranCare or Vitalink shall have received (i) a certificate as to the good standing of each Loan Party as of a recent datepaid all costs, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date expenses and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, taxes provided for in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective DateSection 4 hereof, as applicablewell as all fees and expenses currently --------- payable by New GranCare, certifying that no such amendment or modification has occurred)Vitalink, (B) that attached thereto is a true GranCare, AMS Properties and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or GCIHCC under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Consent and Amendment to Transaction Documents (Vitalink Pharmacy Services Inc), Consent and Amendment to Transaction Documents (New Grancare Inc)
Effectiveness. This Agreement shall become effective on and as of the date on which that each of the following conditions precedent is shall have been satisfied (such date, the “Effective Date”or waived in accordance with Section 9.5):
(a) The the Administrative Agent shall have received duly executed and delivered counterparts from each of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Issuing Bank and the Required Lenders Banks (determined immediately after giving effect x) a counterpart of this Agreement signed on behalf of such Person or (y) written evidence satisfactory to the incurrence Administrative Agent (which may include facsimile transmission of the Incremental 2018 Term F Loans and the use a signed signature page of proceeds thereof).this Agreement) that such Person has signed a counterpart of this Agreement;
(b) The receipt by the Administrative Agent of written opinions (each dated the Effective Date and addressed to the Administrative Agent and the Lenders) of (i) the General Counsel of the Borrower and (ii) Hunton & ▇▇▇▇▇▇▇▇, special New York counsel for the Borrower, in each case in form and substance satisfactory to the Administrative Agent and the Lenders covering such matters relating to the Borrower, the Loan Documents and the transactions contemplated hereby as they may require;
(c) all Existing Bank Debt shall be paid in full, all Liens, if any, securing the same and all commitments thereunder shall be terminated, and the Administrative Agent shall have received payment from satisfactory evidence of the Borrowerforegoing;
(d) all fees payable to the Lenders and the Agents on the Effective Date, for and the account reasonable fees and expenses of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered counsel to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonincurred in connection with the preparation, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% negotiation and closing of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paidLoan Documents, shall not be refundable in whole or in part.have been paid;
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (iie) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as of good standing with respect to the good standing of each Loan Party as of a recent date, Borrower from the Secretary of State of its state of organization; incorporation, and (ii) a certificate of the Secretary or an Assistant Secretary of each Loan Party dated the Effective Date Borrower, in form and certifying substance reasonably satisfactory to the Administrative Agent, attaching (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred)organizational documents, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to and the transactions contemplated thereby which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, and (C) as containing an incumbency certification with respect to the incumbency and specimen signature of each officer executing this Agreement or thereof signing any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.Document;
(f) The Administrative Agent shall have received all Fees the representations and other amounts due warranties set forth in Article 4 are true and payable correct on or prior to and as of the Effective Date; and
(g) no Default shall have occurred and be continuing on the Effective Date. Notwithstanding anything to the contrary contained in this Section 3.1, including upfront fees this Agreement shall not become effective or be binding on any party hereto unless not later than November 1, 2009, all of the foregoing conditions are satisfied (which may be or waived in accordance with Section 9.5). The Borrower and the form of original issue discount) in Banks party to the amounts agreed with each Incremental 2018 Term F Lender andExisting Agreements, to the extent invoicedthat the Banks constitute “Required Banks” thereunder, reimbursement or payment of all out-of-pocket expenses required hereby agree that the commitments to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents extend credit thereunder shall be in full force and effect on terminate automatically upon the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall promptly notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement of the Effective Date Date, and such notice shall be conclusive and bindingbinding on all parties hereto.
Appears in 2 contracts
Sources: Credit Agreement (MEADWESTVACO Corp), Credit Agreement (MEADWESTVACO Corp)
Effectiveness. This Agreement Incremental RCF Amendment shall become effective on and as of the date (the “Incremental RCF Amendment Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement Incremental RCF Amendment that, when taken together, bear the signatures of Parent(i) Holdings, (ii) the Borrower, (iii) each Subsidiary Guarantorother Loan Party, each Incremental 2018 Term F Lender (iv) the Administrative Agent and (v) the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).2014 Revolving Credit Commitment Increase Lenders;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower (A) certifying that the conditions precedent set forth in Sections 4.02(a) and (b) of the Credit Agreement shall have been satisfied on and as of the Incremental RCF Amendment Effective Date, (B) certifying compliance with clauses (A), (B) and (C) of Section 2.14(a)(i) of the Credit Agreement and (C) containing the true and complete calculations (in reasonable detail) required to show compliance with Section 2.14(a)(i)(B) and Section 2.14(a)(i)(C) of the Credit Agreement;
(c) the Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form of the certificate delivered pursuant to Section 4.01(a)(vi) of the Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by this Incremental RCF Amendment on the Incremental RCF Amendment Effective Date) attesting to the Solvency of the Borrower and its Restricted Subsidiaries (taken as a whole) after giving effect to this Incremental RCF Amendment and the 2014 Revolving Credit Commitment Increases established pursuant hereto;
(d) the Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and the authorization of this Incremental RCF Amendment and amendment of the Credit Agreement and the other transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received favorable written opinion customary legal opinions of (i) BassYoung ▇▇▇▇▇▇▇ Stargatt & ▇▇▇▇▇▇ LLP, Delaware counsel to the Loan Parties and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, New York counsel for Parent to the Loan Parties, in each case, as to any matter reasonably requested by the Administrative Agent, addressed to the Lenders and the BorrowerAdministrative Agent, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Incremental RCF Amendment Effective Date and certifying (A) that attached thereto is a true in form and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent, which the Loan Parties hereby request such counsel to deliver;
(f) all of the conditions specified in Section 2.14 of the Credit Agreement with respect to Revolving Credit Commitment Increases shall have been satisfied; and
(g) the Administrative Agent on and the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Datearrangers of this Incremental RCF Amendment, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer payment of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees and other amounts due and payable on or prior to the Incremental RCF Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender Date and, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force , including the reasonable fees, charges and effect on disbursements of counsel for the Effective Date, Administrative Agent and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Documentarrangers. The Administrative Agent shall notify the Borrower, Borrower and the Lenders of the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the RCF Amendment Effective Date Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Incremental Revolving Credit Facility Amendment, Incremental Revolving Credit Facility Amendment (Sabre Corp)
Effectiveness. This Agreement Refinancing Amendment shall become effective on and as of the date (the “First Refinancing Amendment Effective Date”, which date was August 13, 2018) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement Refinancing Amendment that, when taken together, bear the signatures of Parent(i) Holdings, (ii) the Borrower, (iii) each Subsidiary Guarantorother Loan Party that is party hereto, (iv) the Administrative Agent, (v) each Incremental 2018 Other Term F Lender specified on Schedule 2.01 and (vi) solely with respect to Section 3 hereof, the Lenders constituting Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Other Term F Loans and the use of proceeds thereofLoans).;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written solvency certificate substantially in the form of Exhibit B to the Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by this Refinancing Amendment on the First Refinancing Amendment Effective Date);
(c) the Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and the authorization of this Refinancing Amendment and amendment of the Credit Agreement and the other transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received a customary legal opinion of (i) Bass, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLCLLP, special New York counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Parties;
(e) The the Administrative Agent shall have received a certificate, dated the Effective Date and signed by certificate of a Financial Responsible Officer of the Borrower, confirming compliance with Borrower dated as of the conditions precedent First Refinancing Amendment Effective Date (i) as to the accuracy in all material respects of the representations and warranties specified in Section 4 hereof and (ii) certifying that the condition set forth in paragraphs clause (bf) and (c) of Section 4.01 of the Credit Agreement.below has been satisfied;
(f) The no Default exists as of the First Refinancing Amendment Effective Date, both immediately before and immediately after giving effect to this Refinancing Amendment and the transactions contemplated hereby;
(g) the Administrative Agent and the Refinancing Amendment Arrangers, as applicable, shall have received (or will receive substantially simultaneously with the funding of the 2018 Other Term Loans) payment of all Fees fees and other amounts due and payable on or prior to the First Refinancing Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender Date and, to the extent invoicedinvoiced at least 2 Business Days prior to the First Refinancing Amendment Effective Date (or such later date as the Borrower may agree), reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document., including the reasonable and reasonably documented out-of-pocket fees, charges and disbursements of counsel for the Administrative Agent;
(gh) The Security Documents the Borrower shall be in full force have made (or substantially concurrently with the funding of the 2018 Other Term Loans will make) the First Refinancing Amendment Prepayment; and
(i) the Administrative Agent shall have received a “Life-of-Loan” Federal Emergency Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with notice about special flood hazard area status and effect on flood disaster assistance, duly executed by the Effective DateBorrower, and evidence of flood insurance in compliance with the Collateral Agent on behalf of the Secured Parties shall have a security interest Flood Program, in the Collateral of the type and priority described event any Mortgaged Property is located in each Security Documenta special flood hazard area. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other 2018 Other Term Lenders under the Credit Agreement of the First Refinancing Amendment Effective Date Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Refinancing Amendment to First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Refinancing Amendment to First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which first written above only upon satisfaction in full in the discretion of the Administrative Agent of each of the following conditions precedent is satisfied (such date, the “Sixth Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) 8.1 The Administrative Agent shall have received a favorable copy of this Amendment duly executed and delivered by the Borrowers, each other Loan Party, each Lender and the Administrative Agent;
8.2 The representations and warranties of or on behalf of the Loan Parties in this Amendment are true, accurate and complete (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date) on and as of the Sixth Amendment Effective Date;
8.3 A written opinion of (i) Bassthe Borrowers’ counsel, ▇▇▇▇▇ & ▇▇▇▇ PLCaddressed to the Administrative Agent, the Issuing Bank and the Lenders and reasonably acceptable to the Administrative Agent;
8.4 The Loan Parties shall have paid all outstanding costs and expenses owed to the Administrative Agent pursuant to Section 9.03 of the Credit Agreement, including, without limitation, all reasonable fees, charges and disbursements of counsel for Parent the Administrative Agent in an amount not to exceed $25,000;
8.5 The execution of a Joinder Agreement by AMP Media and Borderless Freight;
8.6 the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to one or more certificates of the good standing Loan Parties, including AMP Media and Borderless Freight, dated the Sixth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions of the Boards of Directors of each Loan Party as of a recent dateParty, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary members or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party other body authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party, (B) identify by name and that such resolutions have not been modifiedtitle and bear the signatures of the officers of each Loan Party authorized to sign the Loan Documents to which it is a party and, rescinded or amended and are in full force and effect the case of the Parent Borrower, its Financial Officers, and (C) as to contain appropriate attachments, including the incumbency and specimen signature charter, articles or certificate of organization or incorporation of each officer executing this Agreement or any other document delivered in connection herewith on behalf Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party; (iii) Party and a certificate true and correct copy of another officer as to the incumbency its bylaws or operating, management or partnership agreement, or other organizational or governing documents, and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as a good standing certificate for each Loan Party from its jurisdiction of organization;
8.7 the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received the results of a certificaterecent lien search in the jurisdiction of organization of each of AMP Media and Borderless Freight and each jurisdiction where assets of such entities are located, dated the Effective Date and signed by a Financial Officer such search shall reveal no Liens on any of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) assets of AMP Media or Borderless Freight except for liens permitted by Section 4.01 of the Credit Agreement.6.02; and
(f) 8.8 The Administrative Agent shall have received all Fees other documents or materials requested by the Administrative Agent, in each case, in form and other amounts due and payable on or prior substance reasonably acceptable to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan DocumentAgent.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Pattern Group Inc.), Credit Agreement (Pattern Group Inc.)
Effectiveness. This Agreement (a) Paragraph 8 of this Amendment shall become effective on and as of the date (the “Required Lender Effective Date”) on which each all of the following conditions precedent is satisfied (such date, the “Effective Date”):have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) counterparts hereof duly executed by Gannett and the Administrative Agent and (ii) an executed consent letter from Existing Lenders constituting Required Lenders authorizing the Administrative Agent to enter into this Amendment;
(ii) The Lenders and the Administrative Agent shall have received all fees required to be paid on or before the date hereof in connection with this Amendment or the Credit Agreement.
(b) Paragraphs 2 through 7 of this Amendment shall become effective as of the date (the “Unanimous Lender Effective Date”) on which all of the following conditions precedent have been satisfied:
(i) The Administrative Agent shall have received (i) counterparts hereof duly executed by Gannett and the Administrative Agent and (ii) an executed consent letter from each Existing Lender (other than any Existing Lender which is an Exiting Lender (as defined below)) and each New Lender authorizing the Administrative Agent to enter into this Amendment;
(ii) The Administrative Agent shall have received a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationGannett certifying, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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) belowthis Amendment, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (of Gannett or equivalent thereof) a duly authorized committee thereof authorizing Gannett’s execution and delivery of such Loan Party authorizing this Amendment and the execution, delivery and performance making of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan PartyBorrowings; and
(iii) a certificate of another officer as to The Lenders and the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed paid on or paid by before the Borrower hereunder date hereof in connection with this Amendment or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgreement.
Appears in 2 contracts
Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Effectiveness. This Agreement shall become be effective on and as of upon the date on which each (the “Effective Date”) that all of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative Agent shall have received duly executed the execution and delivered counterparts delivery of this Agreement that, when taken together, bear the signatures by each of Parent, the Borrower, each Subsidiary Guarantorthe other Loan Parties, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) BassFifth Third, ▇▇▇▇▇▇ & and the Required Lenders;
(b) receipt by Fifth Third of fully-completed Schedules to this Agreement;
(c) ▇▇▇▇▇▇ PLCand Fifth Third shall have acknowledged receipt from the Borrower of payment of the fees and expenses referred to in Section 8 of this Agreement by the parties and in the manner set forth therein;
(d) Fifth Third shall have received, counsel for Parent in each case, in form and substance reasonably acceptable to Fifth Third, each of the Borrower, substantially to the effect fully-executed documents and other deliveries set forth on Exhibit B-1 the Closing Agenda and Document Checklist attached hereto as Schedule 3 (other than items 4, 6 , 9 and 10 on such Schedule 3, which the Borrower shall deliver promptly following the Effective Date) and all of the deliveries set forth on Schedule 5;
(e) Fifth Third shall have confirmed in writing that it has received (i) the items set forth in Section 7 of Schedule 3 attached hereto and (ii) the general counsel of Parent, substantially to the effect items set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that on Schedule 5 attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreementhereto.
(f) The Administrative Agent Fifth Third shall have received all Fees received, in form and other amounts due substance reasonably acceptable to Fifth Third, verification from each Lender of such Lender’s Revolving Credit Commitment and payable on or prior to the Effective Dateoutstanding principal amount of Revolving Credit Loans, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with Term Loans, Swing Line Loans and Incremental Loans held by each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.such Lender;
(g) The Security ▇▇▇▇▇▇ shall have acknowledged receipt from the Borrower of payment in immediately available funds of (i) all costs, expenses, accrued and unpaid fees and other amounts payable to it in its capacity as the existing Administrative Agent and as a Swing Line Lender pursuant to the Loan Documents (including fees and expenses of counsel) and (ii) a portion of the administrative agent fee that was due and payable by the Borrower to ▇▇▇▇▇▇ on April 29, 2009, prorated for the period commencing on April 29, 2009 through and including the date hereof (and ▇▇▇▇▇▇ hereby acknowledges and agrees, that such payment shall be constitute payment in full force and effect on the Effective Date, and the Collateral Agent on behalf of all obligations of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders Loan Parties under that certain fee letter agreement dated as of March 25, 2005 by and among ▇▇▇▇▇▇, ▇▇▇▇▇▇ Brothers, Inc. and the Borrower;
(h) ▇▇▇▇▇▇ shall have confirmed in writing to the Borrower and the Successor Administrative Agent and Swing Line Lender that it has complied with the requirements set forth in the June Order;
(i) the Borrower and Holdings shall have withdrawn that certain Motion of Mapco Express, Inc. and Delek US Holdings for Relief from Automatic Stay [Doc. No. 1663] (the “Motion”) previously filed with the Bankruptcy Court; and
(j) the Successor Administrative Agent and Swing Line Lender shall have withdrawn its Limited Joinder to the Motion previously filed with the Bankruptcy Court. The parties hereto hereby agree that this document shall constitute a “Loan Document” under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgreement.
Appears in 2 contracts
Sources: Resignation, Waiver, Consent and Appointment Agreement (Delek US Holdings, Inc.), Resignation, Waiver, Consent and Appointment Agreement (Delek US Holdings, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the first date on which each of the following conditions precedent is have been satisfied (such date, or waived in accordance with Section 10.01 of the Credit Agreement) (the “Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and from the Borrower, substantially to the effect set forth on Exhibit B-1 Required Lenders and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received either (i) a certificate as to the good standing counterpart of each Loan Party as this Amendment signed on behalf of a recent date, from the Secretary of State of its state of organization; such party or (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof written evidence reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date (which may include .pdf or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (Bfacsimile transmission of a signed signature page of this Amendment) that attached thereto is such party has signed a true and complete copy counterpart of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan PartyAmendment; (iiib) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(eor its counsel) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by the President and Chief Executive Officer, a Vice President or a Financial Officer of the Borrower, confirming compliance with (i) the conditions precedent accuracy of the representations and warranties set forth in paragraphs Section 3 of this Amendment and (bii) and the absence of any Default or Event of Default; (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent and its applicable Affiliates required to be reimbursed paid on or paid by before the Amendment Effective Date pursuant to (i) Section 10.04 of the Credit Agreement and (ii) that certain Fee Letter, dated as of the date hereof, between the Borrower hereunder or under any other Loan Document.
and BofA Securities, Inc., shall have been paid; and (gd) The Security Documents the Borrower shall be in full force have paid all reasonable and effect on documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least three (3) days prior to the Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Amendment Effective Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgent).
Appears in 2 contracts
Sources: Credit Agreement (Laboratory Corp of America Holdings), Term Loan Credit Agreement (Laboratory Corp of America Holdings)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent set forth in this Section 3 is satisfied (such date, the “Effective Date”):
(a) 3.01 The Administrative Agent shall have received duly executed and delivered counterparts (in such number as may be requested by the Administrative Agent) of this Agreement that, when taken together, bear the signatures of Parent, Amendment from (a) the Borrower, (b) each Subsidiary Guarantor, each Incremental 2018 Term F Lender (c) the Administrative Agent, and (d) Lenders constituting at least the Required Lenders Lenders.
3.02 The Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer certifying that:
(determined immediately a) No Default or Event of Default shall have occurred and be continuing as of the date hereof, before and after giving effect to the incurrence terms of the Incremental 2018 Term F Loans and the use of proceeds thereof).this Amendment; and
(b) The Administrative Agent All representations and warranties made by any Credit Party in the Credit Agreement or in the other Credit Documents shall have received payment from be, to the knowledge of the Borrower, for true and correct in all material respects (unless such representations and warranties are already qualified by materiality or Material Adverse Effect, in which case they shall be true and correct in all respects) with the account same effect as though such representations and warranties had been made on and as of each 2021 Term D Lender that the date hereof (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have unconditionally been true and irrevocably correct in all material respects (unless such representations and warranties are already qualified by materiality or Material Adverse Effect, in which case they shall have been true and correct in all respects) as of such earlier date).
3.03 The Borrower shall have executed and delivered, or caused to be executed and delivered Mortgages granting a security interest in Borrowing Base Properties not subject to a Mortgage immediately prior to the Effective Date with a PV-9 equal to at least $750,000,000.
3.04 The Borrower shall have paid (including an authorization by the Borrower to debit an account with the Administrative Agent), no later than the Effective Date, (a) to the Administrative Agent (for each Lender executing and delivering this Amendment on or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonbefore 5:00 pm, New York City timeCentral Time, on March 5April 8, 2015 2016 (each, a “Consenting Lender”), an amendment a fee in an amount equal to 0.050.25% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 Commitment; and (iib) the general counsel all fees and expenses of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to before the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of including all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgreement.
Appears in 2 contracts
Sources: Credit Agreement (Chesapeake Energy Corp), Credit Agreement (Chesapeake Energy Corp)
Effectiveness. This Agreement shall become effective on and as of the date on which each upon satisfaction of the following conditions precedent is satisfied (the date of such dateeffectiveness, the “First Amendment Effective Date”):
(a) The Administrative Agent and each Lender shall have received each of the following documents, duly executed, in each case, in form and substance reasonably satisfactory to Administrative Agent and each of the Lenders:
i. d▇▇▇ executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).other Margin Loan Documentation;
(bA) The Administrative Agent shall have received payment from the Borrower, for the account a certificate of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, B▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party dated as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the First Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of executed by its respective Authorized Representative, which shall (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of certify the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Margin Loan Documents Documentation to which such person it is a partyparty and the Transactions to be consummated by it on such date and (2) contain appropriate attachments, including its Organization Documents and the engagement letter(s) for, or other reasonably satisfactory evidence of the engagement of, an independent director for B▇▇▇▇▇▇▇, and (B) a long form good standing certificate for Borrower from its jurisdiction of organization;
iii. a favorable opinion of B▇▇▇▇▇▇▇’s counsel, addressed to Administrative Agent and L▇▇▇▇▇▇, in form and substance reasonably satisfactory to Administrative Agent and each Lender, dated as of the First Amendment Effective Date;
iv. the results of a recent Lien and judgment search in the jurisdiction of organization of B▇▇▇▇▇▇▇, and each such search shall reveal no Liens on any of the assets of, or judgments against, Borrower, except for Permitted Liens;
v. proper financing statements (Form UCC-1 or the equivalent) for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security Agreements with respect to the Additional Lenders; and
vi. any information or documentation reasonably requested by any Lender pursuant to Section 10.15 of the Margin Loan Agreement.
(b) On or prior to the First Amendment Effective Date, the Collateral Accounts for the Lenders (including the Additional Lenders) shall have been established by Borrower; Borrower shall have executed and delivered all account opening documentation required by Custodian; 83,074,858 Units and an equivalent number of Class B Shares constituting Acceptable Collateral shall have been pledged under the Security Agreements in favor of each Applicable Lender on a Pro Rata Basis; such Class B Shares and Units shall be free from all Transfer Restrictions (other than Existing Transfer Restrictions) and Restrictive Conditions (other than Existing Restrictive Conditions); and the Collateral Requirement shall have been satisfied in all material respects.
(c) All reasonable and documented out-of-pocket fees or expenses required to be paid under the Margin Loan Documentation on or before the First Amendment Effective Date, including counsel fees invoiced at least one Business Day prior to such date, shall have been paid on or before such date.
(d) Each of the representations and warranties contained in the Margin Loan Documentation shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) on and as of the First Amendment Effective Date, except to the extent that such resolutions have not been modifiedrepresentations and warranties expressly relate to an earlier date, rescinded in which case they shall be true and correct in all material respects as of such date (unless any such representation or amended and are in full force and effect and (C) warranty is qualified as to the incumbency materiality, in which case it shall be true and specimen signature of each officer executing this Agreement or any other document delivered correct in connection herewith on behalf all respects as of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestdate).
(e) The Administrative Agent No Mandatory Prepayment Event shall have received a certificateoccurred that has not been cured or waived, dated and no Default, Event of Default, Collateral Shortfall or Adjustment Determination Period shall have occurred and be continuing, in each case on the First Amendment Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit AgreementDate.
(fi) The Administrative Agent Each Lender shall have received all Fees and other amounts due and payable on or received, at least three Business Days prior to the First Amendment Effective Date, all documentation and other information regarding Borrower reasonably requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andAct, to the extent invoicedrequested in writing at least 10 days prior to the First Amendment Effective Date and (ii) to the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, reimbursement or payment of all out-of-pocket expenses required at least three Business Days prior to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the First Amendment Effective Date, and if any Lender has requested, in a written notice at least 10 days prior to the Collateral Agent on behalf of the Secured Parties First Amendment Effective Date, a Beneficial Ownership Certification, each Lender shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and received such notice shall be conclusive and bindingBeneficial Ownership Certification.
Appears in 1 contract
Sources: First Amendment Agreement (Endeavor Group Holdings, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Amendment No. 2 Effective Date”):) that the following conditions have been satisfied:
(ai) The Administrative Agent and the Revolver Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, signature pages hereto from each Subsidiary GuarantorLoan Party, each Incremental 2018 Term F Revolving Lender, each Incremental L/C Issuer, and each other Revolving Credit Lender and the Required Lenders L/C Issuer;
(determined immediately after giving effect to the incurrence ii) Each of the Incremental 2018 Term F Loans representations and warranties contained in Section 2 hereof shall be true and correct in all material respects on and as of the use of proceeds thereof).Amendment No. 2 Effective Date;
(biii) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Revolver Agent shall have received (A) (i) a recently dated certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State Borrower under the laws of its state jurisdiction of organization; incorporation, and (ii) a certificate of the Secretary secretary or Assistant Secretary assistant secretary of each Loan Party dated the Effective Date and Borrower certifying (Ax) that attached thereto is a are true and complete copy copies of (1) the by-laws (certificate of incorporation, certificate of formation or equivalent thereof) formation document of the Borrower, and (2) the certificate or articles of incorporationall amendments thereto, certified as of a recent date by the Secretary appropriate Governmental Authority in its jurisdiction of State incorporation, (2) the bylaws, operation agreement, limited liability company agreement or equivalent document of the applicable state of organization, in each case of such Loan Party Borrower 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Amendment No. 2 Effective Date, and (3) the Second Restatement Effective Date or resolutions of the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy board of resolutions duly adopted by the Board of Directors directors (or equivalent thereofother appropriate governing body) of such Loan Party the Borrower, authorizing the Incremental Increase and Incremental L/C Increase hereunder, the execution, delivery and performance of this Amendment and the other Loan Documents to which such person the Borrower is contemplated to be a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (Cy) as to the incumbency and specimen genuineness of the signature of each officer of the Borrower executing this Agreement or any other document delivered in connection herewith on behalf of such Loan PartyDocuments; (iiiB) a certificate of another officer as an opinion from (i) Milbank LLP, special New York counsel to the incumbency Loan Parties, addressed to the Agents and specimen signature of the Secretary or Assistant Secretary executing Lenders on the certificate pursuant to clause Amendment No. 2 Effective Date and (ii) above▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., general counsel to the Loan Parties, addressed to the Agents and the Lenders on the Amendment No. 2 Effective Date; and (ivC) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by customary certificate from a Financial Responsible Officer of the Borrower, confirming compliance with Borrower certifying satisfaction of the conditions precedent set forth in paragraphs clause (bii) above and (cD) reasonably satisfactory results of Section 4.01 of the Credit Agreement.recent UCC, tax and judgment Lien searches with respect to each Loan Party;
(fiv) The Administrative Agent JPMCB, as arranger for this Amendment (the “Arranger”) shall have received all Fees reasonable and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all documented out-of-pocket expenses (including the reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent, the Revolver Agent and the Arranger) required to be paid or reimbursed or paid by for which invoices have been presented a reasonable period of time prior to the Borrower hereunder or under any other Loan Document.Amendment No. 2 Effective Date shall have been paid;
(gv) The Security Documents Borrower shall be in full force have paid all fees and effect accrued and unpaid interest on all outstanding Revolving Credit Loans and Letters of Credit;
(vi) To the extent any Revolving Credit Loans are outstanding immediately prior to the Amendment No. 2 Effective Date, each Incremental Revolving Lender shall make (or concurrently with the effectiveness of this Amendment shall make) available to the Revolver Agent such amounts as required to cause each Revolving Credit Lender’s portion of any outstanding Revolving Credit Loans to equal its revised Applicable Percentage of such outstanding Revolving Credit Loans immediately after giving effect to this Amendment in accordance with the penultimate sentence in Section 2.14(d) of the Credit Agreement and the Collateral Agent on behalf of the Secured Parties Borrower shall have a security paid accrued interest on any such Revolving Credit Loans and in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders connection therewith any amounts owing under Section 3.05 under the Credit Agreement Agreement. For purposes of determining whether the Effective Date and such notice conditions set forth in this Section 3 have been satisfied, by releasing its signature page hereto, each Required Revolving Credit Lender party hereto shall be conclusive and bindingdeemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, such Required Revolving Credit Lender.
Appears in 1 contract
Sources: Credit Agreement (Frontier Communications Parent, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date (the “Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):satisfied:
(a) 4.1 The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear Amendment from the signatures of Parent, the Borrower, other Loan Parties and each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Lender.
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) 4.2 The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) certificate executed by a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary Responsible Officer of each Loan Party dated as of the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationDate, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to which the Administrative Agent on and the Closing DateLenders may conclusively rely until the Administrative Agent receives notice in writing from the Parent, the First Restatement Effective Date, Borrower or each other Loan Party to the Second Restatement Effective Date or the Third Restatement Effective Date, as applicablecontrary, certifying that no attached to each such amendment or modification has occurred), (B) that attached thereto certificate is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent thereofother governing body) of such Loan Party Person, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such person is a partythis Amendment.
4.3 The Administrative Agent shall have received, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of itself and the Lenders, customary written opinions of K▇▇▇▇▇▇▇ & E▇▇▇▇, LLP, counsel for the Loan Parties (or such Loan Party; (iii) a certificate of another officer as other counsel selected by the Borrower and reasonably acceptable to the incumbency Administrative Agent), in form and specimen signature of substance satisfactory to the Secretary or Assistant Secretary executing Administrative Agent, covering such matters relating to the certificate pursuant to clause (ii) above; Loan Parties and (iv) such other documents this Amendment as the Administrative Agent may shall reasonably request.
(e) 4.4 The Administrative Agent shall have received the monthly certificate of a certificate, dated the Effective Date and signed by a Financial Responsible Officer specified in Section 6.19(ii) of the Credit Agreement concerning the Borrower’s required minimum hedging for the calendar month ending November 30, 2022, demonstrating or otherwise confirming the Borrower’s compliance with Section 6.19(ii) of the conditions precedent set forth in paragraphs Credit Agreement as of the end of such calendar month.
4.5 Each of the Parent, the Borrower and each other Loan Party shall have confirmed and acknowledged to the Administrative Agent and the Lenders, and by its execution and delivery of this Amendment, each of the Parent, the Borrower and each other Loan Party does hereby confirm and acknowledge to the Administrative Agent and the Lenders, that (a) the execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate or limited liability company action, as applicable, on the part of the Parent, the Borrower and each other Loan Party, (b) the Credit Agreement and each other Loan Document to which it is a party constitute valid and legally binding agreements enforceable against each of the Parent, the Borrower and each other Loan Party in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity, and (c) the representations and warranties by each of Section 4.01 the Parent, the Borrower and each other Loan Party contained in Article V of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees Agreement or any other Loan Document to which such entity is a party are true and other amounts due correct on and payable on or prior to as of the Effective DateDate in all material respects (or if such representation or warranty is qualified by or subject to a “materiality”, including upfront fees (which may “material adverse effect”, “material adverse change” or any similar term or qualification, such representation or warranty shall be true and correct in all respects) as though made on and as of the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender anddate hereof, except to the extent invoicedthat such representations and warranties specifically refer to an earlier date, reimbursement in which case was true and correct, in all material respects (or payment of all out-of-pocket expenses required if such representation or warranty is qualified by or subject to a “materiality”, “material adverse effect”, “material adverse change” or any similar term or qualification, such representation or warranty shall continue to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(gtrue and correct in all respects) The Security Documents shall be in full force and effect on the Effective Dateas of such earlier date, and the Collateral Agent on behalf (d) no Default or Event of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders Default exists under the Credit Agreement or any of the Effective Date and such notice shall be conclusive and bindingother Loan Documents.
Appears in 1 contract
Effectiveness. This Agreement letter amendment shall become effective on and as of the date on which first above written when and if:
(I) counterparts of this letter amendment shall have been executed by the Company, each Guarantor and the Pledgors and you;
(II) the covenants of the following conditions precedent is satisfied (Company set forth in the Bank Agreement shall have been amended to reflect the covenant modifications of the Agreement made herein; the Required Holders hereby consent to such date, amendments and waivers under the “Effective Date”):Bank Agreement;
(aIII) The Administrative no Default or Event of Default under the Agreement shall have occurred and be continuing;
(IV) the Bank Agent and other requisite holders, if any, of the Indebtedness issued under the Bank Agreement shall have consented to the amendments of the Agreement set forth herein;
(V) the Bank Agent shall have received duly executed possession of all shares of stock of TransMontaigne Product Services Midwest Inc. and delivered counterparts LDEC owned by TransMontaigne Product Services Inc. and all shares of this Agreement thatWest Shore Pipe Line Company owned by TransMontaigne Pipeline Inc.;
(VI) the opinions of ▇▇▇▇ ▇▇▇▇▇▇▇, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect counsel to the incurrence of the Incremental 2018 Term F Loans Company and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent to certain Guarantors, in form and the Borrower, substantially substance satisfactory to the effect set forth on Exhibit B-1 and Majority Holders;
(iiVII) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent holders shall have received (i) a certificate as the credit fee payable on October 30, 1998 referred to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate in paragraph 5Q of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying Agreement, as amended hereby; and
(A) that attached thereto is a true and complete copy of (1VIII) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent holders shall have received a certificate, dated the Effective Date and signed Joinder Agreements contemplated by a Financial Officer paragraph 11I of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date TransMontaigne Product Services East Inc. and such notice shall be conclusive and binding.TransMontaigne Product Services Inc.
Appears in 1 contract
Sources: Master Shelf Agreement and Pledge Agreement (Transmontaigne Inc)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “First Amendment Effective Date”):
(a) The when, and only when, the Administrative Agent shall have received the following:
(a) counterparts of this Amendment duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, by (i) the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender (ii) the Guarantors and (iii) the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered all fees required to be paid to the Administrative Agent (or its counsel) its executed signature page to this Agreement at and the Lenders, as applicable, on or prior to 12:00 noonthe First Amendment Effective Date including, New York City timewithout limitation, the fees described in that certain Fee Letter dated as of the date hereof between the Borrower and the Administrative Agent;
(c) payment of costs and expenses as required under the Credit Agreement, including, without limitation, pursuant to Sections 2.11(c) and 9.03(a) of the Credit Agreement for which invoices have been presented on March 5or before the First Amendment Effective Date;
(d) for the ratable benefit of the Term Lenders, 2015 (each, a “Consenting Lender”), an amendment fee prepayment of the Term Loans in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds $50,000,000; and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ive) such other certificates, documents and other instruments as the Administrative Agent may reasonably request.
, all in form and substance reasonably acceptable to the Administrative Agent. The parties hereto hereby agree that the prepayment of Term Loans described in clause (ed) The Administrative Agent above shall have received a certificate, dated not constitute an optional prepayment of Term Loans or otherwise be deducted from Excess Cash Flow for purposes of calculating the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth prepayment described in paragraphs (bSection 2.10(c) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other undersigned Lenders under hereby waive any notice required by Section 2.10(a) of the Credit Agreement of the Effective Date and with respect to such notice shall be conclusive and bindingprepayment.
Appears in 1 contract
Effectiveness. This Agreement First Amendment shall become effective as of the date (the “First Amendment Effective Date”) on which the following conditions have been satisfied:
1. the Administrative Agent shall have received copies of signature pages to this First Amendment, duly executed and delivered (including by way of facsimile or other electronic transmission) by the Administrative Agent, the Loan Parties and the Required Lenders;
(a) no Default shall have occurred and be continuing on the First Amendment Effective Date or would occur after giving effect to this First Amendment and (b) both immediately before and after giving effect to this First Amendment, each of the representations and warranties made by any Loan Party set forth in Article III of the Credit Agreement or in any other ABL Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date First Amendment Effective Date with the same effect as though made on which each and as of the following conditions precedent is satisfied (such date, except to the “Effective Date”):extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date);
(a) The Administrative Agent 3. the Borrower shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered paid to the Administrative Agent and its Affiliates, all costs, fees and expenses (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% including legal fees and expenses of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, S▇▇▇▇▇▇▇ Ronon S▇▇▇▇▇▇ & Y▇▇▇▇ PLC▇, counsel for Parent LLP) owing in connection with this First Amendment and the Borrower, substantially other ABL Loan Documents to the effect set forth on Exhibit B-1 extent invoiced (in the case of costs and (iiexpenses) the general counsel of Parent, substantially at least one Business Day prior to the effect set forth in Exhibit B-2.First Amendment Effective Date; and
(d) The 4. the Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate true and correct copies of the Secretary First Amendment to Term Loan Credit Agreement, duly executed and delivered (including by way of facsimile or Assistant Secretary of each Loan Party dated the Effective Date and certifying (Aother electronic transmission) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Term 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing DateAgent, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached lenders party thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestParties party thereto.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Abl Credit Agreement (Overseas Shipholding Group Inc)
Effectiveness. This Agreement Amendment, the obligation of each Tranche A Term Lender to make a Tranche A Term Loan and the obligation of each Revolving Lender to provide a Revolving Commitment shall become effective on and as of the date (the “Seventh Amendment Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative Agent shall have received each of the following, dated as of the Seventh Amendment Effective Date (unless otherwise agreed to by the Administrative Agent), in form and substance satisfactory to the Administrative Agent:
(i) this Amendment, duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, by the Borrower, each Subsidiary Guarantorthe Guarantors, each Incremental 2018 Term F Lender of the Revolving Lenders and the Required Tranche A Term Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans listed on Exhibit B hereto and the use of proceeds thereof).Administrative Agent;
(bii) The Administrative Agent shall have received payment from the legal opinion of (A) the Borrower’s general counsel, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered or other counsel reasonably acceptable to the Administrative Agent Agent, (or B) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, counsel to the Borrower and its counselSubsidiaries, and (C) Childs ▇▇▇▇▇▇, PLLC, Nevada special counsel to the Borrower and certain of its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Subsidiaries;
(ciii) The the Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary secretary or Assistant Secretary similar officer of each Loan Party dated as of the Seventh Amendment Effective Date and certifying (Aa) that attached thereto is a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or managing member (or equivalent governing body) of each Loan Party authorizing (x) the execution, delivery and performance of this Amendment and the Amended Credit Agreement (and any agreements relating thereto) and (y) in the case of the Borrower, the extensions of credit contemplated hereunder and under the Amended Credit Agreement, (b) attached thereto is a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party, (c) attached thereto is a true and complete copy of (1) the by-laws (or partnership agreement, limited liability company agreement or other equivalent thereofconstituent and governing documents) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Seventh Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (Ba) belowabove, (ord) subject to Section 6.13 of the Amended Credit Agreement, if such by-laws certificates as to the good standing of each Loan Party that is a registered organization as of a recent date from the Secretary of State (or equivalent thereofother similar official) or certificate or articles from its jurisdiction of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect organization and (Ce) as to the incumbency and specimen signature of each officer executing this Agreement Amendment or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a perfection certificate, dated the Seventh Amendment Effective Date and signed by a Financial Officer responsible officer of the Borrower, confirming compliance with in a form reasonably satisfactory to the conditions precedent set forth Administrative Agent in paragraphs respect of the Loan Parties and the Collateral.
(b) Each of the representations and warranties made by any Loan Party in or pursuant to the Amended Credit Agreement and other Loan Documents shall be true and correct in all material respects on and as of the Seventh Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects).
(c) No Default or Event of Section 4.01 Default has occurred and is continuing on the Seventh Amendment Effective Date or after giving effect to the amendments contemplated herein and the extensions of credit requested to be made on the Seventh Amendment Effective Date.
(d) All governmental and third party approvals necessary in connection with the transactions contemplated hereby and by the Credit Agreement shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(e) All outstanding principal, interest and fees outstanding and accrued under the Credit Agreement (prior to giving effect to any amendments to the Credit Agreement pursuant to this Amendment) as of the Seventh Amendment Effective Date shall have been paid in full by the Borrower to the Administrative Agent, in each case, for the account of the relevant Lenders or the Administrative Agent, as applicable, and all Revolving Commitments as in effect immediately prior to the effectiveness of this Amendment under and as defined in the Credit AgreementAgreement (prior to giving effect to any amendments to the Credit Agreement pursuant to this Amendment) shall concurrently be automatically terminated.
(f) The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented on or before the Seventh Amendment Effective Date.
(g) The Administrative Agent shall have received all Fees a solvency certificate from the chief financial officer of the Borrower, in form and other amounts due and payable on or prior substance reasonably acceptable to the Administrative Agent, certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the incurrence of all Indebtedness in connection herewith on the Seventh Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentare Solvent.
(gh) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received, at least 5 days prior to the BorrowerSeventh Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Incremental 2018 PATRIOT Act, previously requested by the Administrative Agent.
(j) The Administrative Agent shall have received a notice of borrowing with respect to the Tranche A Term F Lenders Loans and the other Lenders under Revolving Loans to be made on the Credit Agreement of the Seventh Amendment Effective Date and such notice shall be conclusive and bindingDate.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied first above written (such date, the “Amendment Effective Date”):
) when (a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) the Company and each other Credit Party party hereto, the Borrower(ii) each Consenting Lender, (iii) each Subsidiary GuarantorNew Lender, (iv) each Incremental 2018 Term F Issuing Lender and (v) Lenders comprising the Required Lenders (determined immediately after giving effect prior to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
Amendment Effective Date, (b) The each of the applicable conditions set forth in Sections 2.19(b) and 10.6 of the Credit Agreement shall have been satisfied, (c) each of the representations and warranties set forth in Section 4 hereof shall be true and correct, (d) the Administrative Agent shall have received payment such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Credit Party, the authorization of this Amendment and the transactions contemplated hereby and any other legal matters relating to the Credit Parties, the Credit Documents or the transactions contemplated hereby (including certified resolutions from the Borrower, for the account board of directors (or similar governing body) of each 2021 Term D Lender that shall have unconditionally Credit Party authorizing the execution, delivery and irrevocably delivered performance of this Amendment), all in form and substance reasonably satisfactory to the Administrative Agent Agent, (or its counsele) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Issuing Lenders and the Lenders (including the Consenting Lenders and the New Lenders)) of (i) Bass, ▇▇▇▇▇▇▇ & ▇▇▇▇ PLCCoie LLP, counsel for Parent and the BorrowerCompany, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party dated as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Amendment Effective Date, (f) the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated as of the Amendment Effective Date Date, and signed by a Financial Officer of the BorrowerResponsible Officer, confirming compliance with the conditions precedent set forth in paragraphs (bSections 4.2(a) and (c4.2(b) of Section 4.01 of the Credit Agreement.
, (fg) The the Administrative Agent and the Lenders (including the Consenting Lenders and the New Lenders) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, in each case to the extent requested in writing to the Company not later than five Business Days prior to the proposed Amendment Effective Date, including, without limitation, a Beneficial Ownership Certification with respect to each Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, (h) the Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket fees and expenses required to be paid or reimbursed or paid by the Borrower hereunder Company under or under in connection with this Amendment, including those fees and expenses set forth in Section 10 hereof and (i) the Company shall have paid all unpaid interest and any other Loan Document.
amounts (gincluding any breakage costs) in respect of the Revolving Loans and Revolving Commitments of the Declining Revolving Lenders (to the extent required under Section 2(a)(ii) hereof) and in respect of the Term Loans of Declining Term Lenders (to the extent required under Section 2(b)(ii) hereof), in each case that have accrued to but excluding the Amendment Effective Date. The Security Documents Company shall be in full force and effect use commercially reasonable efforts to provide to the Administrative Agent, on the Amendment Effective Date, and a favorable written opinion (addressed to the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the BorrowerAgent, the Incremental 2018 Term F Issuing Lenders and the other Lenders under (including the Credit Agreement Consenting Lenders and the New Lenders)) of Luxembourg counsel to the Company reasonably satisfactory to the Administrative Agent, dated as of the Amendment Effective Date and Date; provided, however, that the failure to provide such notice a written opinion shall be conclusive and bindingnot result in a failure to satisfy the conditions precedent to the Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Itron, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each first above written upon the Seller’s fulfillment of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) 3.1 The Administrative Agent shall have received (ior be satisfied that it will receive by such deadline as the Administrative Agent shall specify) a certificate as the following, all of which must be satisfactory in form and content to the good standing of each Loan Party as of a recent dateAdministrative Agent:
(a) this Amendment, from duly executed by the Secretary of State of its state of organizationSeller, the Buyers, and the Administrative Agent;
(b) the Amended and Restated Fee Letter, duly executed by the Seller and the Administrative Agent; and
(iic) a certificate of the Secretary General Partner’s corporate secretary or Assistant Secretary assistant secretary or other authorized officer dated as of each Loan Party dated the Effective Date date hereof as to (i) the incumbency of the officers of the Seller executing this Amendment and certifying all other Repurchase Documents executed or to be executed by or on behalf of the Seller, (Aii) the authenticity of their signatures, and specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it (the Administrative Agent, the Buyers and the Custodian shall be entitled to rely on that attached thereto is certificate until the Seller has furnished a true new certificate to the Administrative Agent, (iii) resolutions of the General Partner’s board of directors, authorizing the execution, delivery and complete copy performance by the Seller of this Amendment and all other Repurchase Documents to be delivered by the Seller pursuant to this Amendment and (iv) copies of the Seller’s (1) the by-laws (or equivalent thereof) and limited partnership agreement, (2) certificate of limited partnership issued by the certificate or state of Texas, (3) articles of incorporation, incorporation certified as of a recent date by the Secretary of State of the applicable state State of organizationthe General Partner, in each case of and (4) bylaws and all amendments, or certification that there have been no changes to such Loan Party as in effect on the Effective Date and at all times documents since a date prior true and correct copy thereof was delivered to the Administrative Agent and that such documents are in full force and effect.
3.2 Payment to the Administrative Agent or the Custodian, as applicable, of all fees and expenses (including the disbursements and reasonable fees of the Administrative Agent’s attorneys) of the Administrative Agent and the Buyers payable by Seller pursuant to Section 9 of the Repurchase Agreement accrued and billed for to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles Seller’s execution and delivery of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment and the obligation of the 2024 Incremental Term Loan Lender to make the 2024 Incremental Term Loan to be provided by it pursuant to Section 2(b) of this Amendment, shall become effective on and as of the date on which (the “Effective Date”) when each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, from: (i) the Borrower, (ii) each Subsidiary GuarantorLoan Party and (iii) the 2024 Incremental Term Loan Lender, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence a counterpart of the Incremental 2018 Term F Loans and the use this Amendment signed on behalf of proceeds thereof).such party;
(b) The the Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, a legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP , counsel for Parent and the Borrower, substantially consistent with the legal opinion delivered on the Funding Date under Section 4.02(b) of the Existing Credit Agreement (other than for changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion) and (A) dated the Effective Date, (B) addressed to the effect set forth on Exhibit B-1 2024 Incremental Term Loan Lender and the 2024 Incremental Arranger and (C) covering the Amendment, and the Borrower hereby requests such counsel to deliver such opinion and (ii) the general counsel of Parent, substantially a Borrowing Request with respect to the effect set forth in Exhibit B-2.2024 Incremental Term Loan;
(dc) The the Administrative Agent (or its counsel) shall have received received: (i) a certificate as to copy of the good standing Organization Documents of each Loan Party as of a recent date, from the Secretary of State of its state of organizationParty; (ii) a certificate of the Secretary or Assistant Secretary good standing in respect of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate copy of another officer as to the incumbency and specimen signature a resolution of the Secretary or Assistant Secretary executing board or, if applicable, a committee of the certificate pursuant to clause (ii) aboveboard, of directors of each Loan Party approving the terms of, and the transactions contemplated by, this Amendment and resolving that it execute, deliver and perform under the terms of this Amendment; and (iv) such other documents a specimen of the signature of persons authorized by the resolution in relation to this Amendment and related documents; (v) a secretary’s certificate or officer’s certificate (as applicable) of the Loan Parties in a form consistent with the secretary’s or officer’s certificate delivered to the Administrative Agent may reasonably request.on the Funding Date under Section 4.02(c) of the Existing Credit Agreement;
(ed) The Administrative Agent shall have received a certificatethe 2024 Incremental Term Loan Lender, dated the Effective Date 2024 Incremental Arranger and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees required to be paid, and other amounts due and payable all expenses required to be reimbursed for which invoices have been presented on or before the Effective Date (including the reasonable fees and expenses of legal counsel);
(e) the representations and warranties set forth in Section 4 of this Amendment shall be true and correct in all material respects on and as of the Effective Date with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date and except where such representations and warranties are qualified by materiality, Material Adverse Effect, or similar language, in which case such representation or warranty shall be true and correct in all respects after giving effect to such qualification; and
(f) The 2024 Incremental Arranger and the 2024 Incremental Term Loan Lender shall have received at least three (3) Business Days prior to the Effective Date, (i) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including upfront fees without limitation, the USA PATRIOT Act and (which may be in ii) Beneficial Ownership Certification for the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, Borrower to the extent invoicedthat it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, reimbursement or payment of all out-of-pocket expenses required in each case, which has been requested not less than three (3) Business Days prior to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Incremental Loan Assumption Agreement (Altice USA, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is shall have been satisfied or waived (such date, the “First Amendment Effective Date”):
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, Amendment executed by the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent, each Issuing Bank, the Swingline Lender, each 2018 Incremental 2018 Term F Revolving Credit Lender and the other Lenders constituting the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that the statements in Sections 9(d) and 9(e) are true as of the First Amendment Effective Date;
(c) the Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit F to the Credit Agreement;
(d) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the 2018 Incremental Revolving Credit Lenders, a favorable written opinion of (i) Bass, A▇▇▇▇▇ & ▇▇▇▇ PLCBird LLP, counsel for Parent the Borrower dated the First Amendment Effective Date and the Borrower, substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit B-1 Administrative Agent;
(e) the Administrative Agent shall have received, (i) with respect to each Loan Party, certificates of good standing from the secretary of state of the state of organization of each Loan Party and (ii) the general counsel of Parent, substantially with respect to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent dateBorrower, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the First Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party the Borrower authorizing the execution, delivery and performance of the Loan Documents to which such person is a partyAmendment and the incurrence of the 2018 Incremental Revolving Loans, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (B) attaching a certified copy of the certificate of incorporation of the Borrower, certified as of a recent date prior hereto, and (C) as to the incumbency and specimen signature of each officer executing this Agreement the Amendment or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Borrower;
(ef) The the Administrative Agent shall have received a certificatereceived, dated for the Effective Date and signed by a Financial Officer ratable account of each 2018 Incremental Revolving Credit Lender, an upfront fee equal to 0.20% of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 aggregate amount of the 2018 Incremental Revolving Commitments provided by each such 2018 Incremental Revolving Credit Agreement.Lender on the First Amendment Effective Date; and
(fg) The Administrative Agent shall have received all Fees reasonable and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all documented out-of-pocket fees and expenses required of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and any other instruments and documents to be reimbursed or paid by the Borrower delivered hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Dateconnection herewith, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingbeen paid.
Appears in 1 contract
Sources: Credit Agreement (Smart Sand, Inc.)
Effectiveness. This Agreement Amendment shall become effective as of the date (the “Eleventh Amendment Effective Date”) on which the following conditions precedent shall have been satisfied:
(a) the Administrative Agent shall have received counterparts hereof duly executed and delivered by each of (i) the Borrower, (ii) the Guarantors, (iii) the Administrative Agent, (iv) the Issuing Lenders, (v) 2023 Extending Lenders holding Five-Year Commitments, (vi) Lenders constituting Required Lenders under the Credit Agreement and (vii) the New Five-Year Lenders listed on Exhibit B hereto;
(i) each of the representations and warranties of the Borrower in the Credit Agreement and this Amendment shall be true and correct in all material respects, as if made on and as of the date on which each hereof (provided that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified); (ii) since December 31, 2017 there shall have been no Material change in the business or financial condition of the following conditions precedent is satisfied Borrower and its Subsidiaries taken as a whole that has not been publicly disclosed, and (such date, the “Effective Date”):iii) no Default or Event of Default shall have occurred and be continuing;
(ac) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement thatan opinion from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect counsel to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the BorrowerLoan Parties, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered addressed to the Administrative Agent (or its counsel) its executed signature page Agent, each Lender and each New Five-Year Lender, in form and substance reasonably satisfactory to this Agreement at or prior to 12:00 noonthe Administrative Agent. In rendering the foregoing opinion, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% such counsel may rely upon certificates of officers of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Loan Parties as to factual matters, including (i) the nature and location of the Effective Date. Such fees shall be payable in immediately available funds andproperty of the Loan Parties, once paid, shall not be refundable in whole or in part.(ii) agreements and instruments to which the Loan Parties are a party and (iii) the conduct of the business of the Loan Parties;
(cd) The the Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated certifying, as of the Effective Date date of this Amendment, to resolutions duly adopted by the board of directors or other governing body of such Loan Party or a duly authorized committee thereof authorizing such Loan Party’s execution and certifying delivery of this Amendment and the making of the Borrowings hereunder, if any, with appropriate insertions and attachments, including (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2x) the certificate of incorporation (or articles similar constituent document) of incorporation, each such Loan Party that is a corporation certified as of a recent date by the Secretary an authorized officer of State of the applicable state of organizationsuch Loan Party, in each case (y) bylaws or equivalent organizational document of such Loan Party as in effect on the Effective Date and at all times since (z) a date prior to the date long form good standing certificate for such Loan Party from its jurisdiction of the resolutions described in clause organization;
(Be) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Dateshall have received such other closing documents, the First Restatement Effective Dateincluding legal opinions, the Second Restatement Effective Date or the Third Restatement Effective Datedocuments, certificates and other instruments, as applicableare customary for the transactions described in this Amendment, certifying that no or as such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.;
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Datefees, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andpayable to New Five-Year Lenders and 2023 Extending Lenders, to the extent invoiced, reimbursement or payment of all and reasonable and documented out-of-pocket costs and expenses required to be reimbursed of the Administrative Agent, including the reasonable fees and disbursements of counsel, shall have been paid or paid by the Borrower hereunder or under any other Loan Document.reimbursed; and
(g) The Security Documents shall be in full force all accrued interest and effect on the Effective Date, and the Collateral Agent on behalf fees payable to Lenders as of the Secured Parties Eleventh Amendment Effective Date shall have a security interest in the Collateral been paid and all principal of the type and priority described in each Security Document. The Administrative Agent any outstanding Five-Year Loans to Non-Extending Lenders shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindinghave been paid.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Effectiveness. This Agreement and the limited waivers and consents set forth in Section 2 above and the other amendments and other modifications to the Existing Note Purchase Agreement and Convertible Notes as set forth in Section 3 above shall become effective on immediately upon the Holder’s and as of the date on which Collateral Agent’s satisfaction with each of the following conditions precedent is satisfied (the date of such datesatisfaction, the “Effective Date”):
(a) 4.1 The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Collateral Agent (or its counsel) its shall have each received the following, each in form and substance satisfactory to the Collateral Agent and the Holders:
(i) D▇▇▇ executed signature page counterparts to this Agreement, which shall be duly executed by the Issuer, each Guarantor, each Holder and the Collateral Agent;
(ii) Copies of each of the A&R Convertible Notes, each duly executed by the Issuer;
(iii) A duly executed copy of the Limited Waiver and Consent, Second Amendment and Restatement of Credit Agreement at or and Reaffirmation of Loan Documents pursuant to which the Lenders and the Term Loan Agent, agree among other things, to consent to this Agreement, the Divestiture Transaction and to waive the Specified Defaults, and all other Term Loan Documents delivered in connection therewith including the Warrants (as defined in the Term Loan Credit Agreement);
(iv) A copy of the engagement letter between the Company Financial Advisor and the Issuer, dated as of June 16, 2022 (the “Financial Advisor Engagement Letter”);
(v) A certificate of a Responsible Officer of the Issuer addressed to the Collateral Agent, in form and substance satisfactory to the Collateral Agent and certifying (a) as to the matters set forth in Section 6 below and (b) that all conditions precedent to the Effective Date have been satisfied;
(vi) Duly-adopted resolutions from the Board of Directors of each Note Party in form and substance satisfactory to the Collateral Agent specifically affirming that (a) prior to 12:00 noonexecuting this Agreement, New York City timesuch Note Party has had the opportunity to review, on March 5evaluate, 2015 and negotiate this Agreement, the Note Purchase Agreement and the other Note Documents, the Specified Fees and any Applicable Redemption Amount and the calculations thereof with its advisors, (eachb) the Specified Fees and any Applicable Redemption Amount are a good faith, a “Consenting Lender”)reasonable approximation of Holders’ liquidated damages upon the applicable triggering events, an amendment fee in an amount equal to 0.05% taking into account all of the aggregate outstanding principal amount circumstances, including the costs of such Consenting Lender’s 2021 Term D Loans funds, the opportunity cost of capital, the relative risk of the investment, and the operational benefits for the Note Parties from continued use of funds as a result of the Holders’ agreement to accept the Specified Fees and any Applicable Redemption Amount in lieu of additional up-front fees, (c) the Specified Fees and any Applicable Redemption Amount are not intended to be nor viewed by the parties as the economic equivalent of unmatured interest and (d) each of the Note Parties has duly authorized its entry into this Agreement, the Amended Note Purchase Agreement and the other Note Documents, and the Exchange in connection therewith;
(vii) (a) at least two (2) Business Days before the Effective Date. Such fees shall be payable , a duly executed Notice of Borrowing (as defined in immediately available the A&R Credit Agreement) and (b) a flow of funds acceptable to the Collateral Agent, in each case, in connection with the A&R Credit Agreement; and, once paid, shall not be refundable in whole or in part.
(cviii) The Administrative Agent shall have received a favorable written opinion Each of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect other conditions precedent set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.F.
Appears in 1 contract
Sources: Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.)
Effectiveness. This Agreement shall become effective on and as The occurrence of the date on which each Effective Date is subject to the satisfaction (or waiver) of only the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The at least three (3) days prior to the Effective Date, the Borrower shall have provided the documentation and other information about the Borrower to the Administrative Agent shall have received duly executed that is required by bank regulatory authorities under applicable “know your customer” and delivered counterparts of this Agreement thatanti-money laundering rules and regulations, when taken togetherincluding, bear the signatures of Parentwithout limitation, the BorrowerU.S. Patriot Act, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of extent such information was reasonably requested by the Incremental 2018 Term F Loans and Arrangers or a Lender in writing at least ten (10) Business Days prior to the use of proceeds thereof).Effective Date;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 shall have received from (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans I) all Lenders hereunder as of the Effective Date. Such fees shall be payable in immediately available funds , (II) the Administrative Agent and (III) the Borrower either (i) a counterpart of this Agreement signed on behalf of such party or (ii) customary written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement; and, once paid, shall not be refundable in whole or in part.
(c) The the Administrative Agent (or its counsel) shall have received received:
(i) a notice from the Borrower providing that all of the commitments under the Bridge Facility shall have been, or shall upon the Effective Date be, terminated;
(ii) copies of the certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing for the Borrower, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(iii) copies, certified by the Secretary or Assistant Secretary of the Borrower, of the Borrower’s by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which it is a party and a certification that there have been no changes to its certificate of incorporation provided pursuant to Section 4.01(c)(ii);
(iv) an incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers or employees of the Borrower authorized to sign the Loan Documents to which the Borrower is a party and to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(v) an officer’s certificate, substantially in the form attached hereto as Exhibit G, dated as of the Effective Date, signed by an Authorized Officer of the Borrower, certifying that (x) on the Effective Date, no Default or Unmatured Default has occurred and is continuing, (y) the representations and warranties contained in Article 5 (other than with respect to Sections 5.05 and 5.06) are true and correct in all material respects (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of the Effective Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date and (z) except as disclosed in the Borrower SEC Report (excluding any disclosures set forth in any risk factor section and in any section relating to forward-looking or safe harbor statements), since January 31, 2018, there has been no material adverse effect on the financial condition, results of operations, business or Property of the Borrower and its Subsidiaries taken as a whole;
(vi) a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) BassWachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof reasonably acceptable to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), Agent; and
(Bvii) that attached thereto is a true all accrued fees and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance expenses of the Loan Documents to which such person is a partyArrangers, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
and the Lenders (eincluding the fees and expenses of counsel (including any local counsel) The for the Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (bAgent) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees Date and for which invoices have been presented at least three (which may be in the form of original issue discount3) in the amounts agreed with each Incremental 2018 Term F Lender and, Business Days prior to the extent invoiced, reimbursement Effective Date shall have been paid or payment shall be paid substantially simultaneously with the Effective Date. The occurrence of all out-of-pocket expenses required the Effective Date shall be confirmed by a written notice from the Administrative Agent to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf shall be conclusive evidence of the Secured Parties shall have a security interest in occurrence thereof. Without limiting the Collateral generality of the type and priority described provisions of Section 8.02, for purposes of determining compliance with the conditions specified in this Section 4.01, each Security Document. The Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall notify have received notice from such Lender prior to the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the proposed Effective Date and such notice shall be conclusive and bindingspecifying its objection thereto.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied first above written (such date, the “Amendment Effective Date”):) when:
(a) The the Administrative Agent shall have received duly executed and delivered (i) counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantorof the Consenting Lenders, each Incremental 2018 of the New Lenders and each of the Tack-On Term F Lender Lenders, (ii) a certificate of the Borrower in substantially the form of the certificate delivered to the Administrative Agent pursuant to Section 4.01(c) of the Credit Agreement on the Effective Date and (iii) a favorable written opinion (addressed to the Administrative Agent, the Issuing Bank and the Required Lenders (determined immediately including the Consenting Lenders, the New Lenders and the Tack-On Term Lenders)) of Cravath, Swaine & M▇▇▇▇ LLP, special New York counsel to the Borrower, dated as of the Amendment Effective Date;
(b) each of the applicable conditions set forth in Sections 2.18(b), 2.21(c), 2.21(e) and 9.04(b) of the Credit Agreement shall have been satisfied;
(c) each of the representations and warranties set forth in Section 5 hereof shall be true and correct;
(d) the Borrower shall (i) be in compliance on a Pro Forma Basis after giving effect to the incurrence of the Incremental 2018 Tack-On Term F Loans (and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% application of the aggregate outstanding principal amount proceeds therefrom) with the covenants contained in Sections 6.09 (if applicable) and 6.10 of such Consenting Lender’s 2021 Term D Loans the Credit Agreement recomputed as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or in part.
(cSection 5.01(b) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 Credit Agreement and (ii) the general counsel have delivered a certificate of Parent, substantially a Responsible Officer certifying as to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received compliance with clause (i) a certificate as to the good standing of each Loan Party as of a recent dateabove, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of together with reasonably detailed calculations demonstrating 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.compliance;
(e) The Administrative Agent shall have received a certificate, dated as of the Amendment Effective Date Date, and signed by a Financial Officer of the BorrowerResponsible Officer, confirming compliance with the conditions precedent set forth in paragraphs (bSections 4.02(a) and (c4.02(b) of Section 4.01 of the Credit Agreement.;
(f) The the Lenders (including the Consenting Lenders, the New Lenders and the Tack-On Term Lenders) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, in each case to the extent requested in writing to the Borrower not later than five Business Days prior to the proposed Amendment Effective Date;
(g) the Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket fees and expenses required to be paid or reimbursed or paid by the Borrower hereunder under or under in connection with this Amendment, including those fees and expenses set forth in Section 10 hereof;
(h) the Borrower shall have paid all unpaid interest and any other Loan Document.amounts (including any breakage costs) in respect of the Existing Term Loans and, solely to the extent required under Section 3(a)(ii) hereof, the outstanding Revolving Loans, that has accrued to but excluding the Amendment Effective Date; and
(gi) The Security Documents the Borrower shall have delivered to the Administrative Agent a Borrowing Request with respect to the Borrowing of the Tack-On Term Loans to be in full force and effect made on the Amendment Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective on and as of the date first written above on which each of the date (the "Closing Date") that the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement thatAmendment which, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Borrower and the Required Lenders;
(b) On or prior to December 31, 2001, Terex shall have issued not less than $200,000,000 aggregate principal amount of Additional Subordinated Notes and shall have used the Net Cash Proceeds thereof to voluntarily prepay Term Loans and Tranche C Term Loans pursuant to Section 2.12 of the Tranche C Credit Agreement;
(c) Terex shall have paid to the Administrative Agent, for the accounts of the Lenders entitled thereto, a fee (determined immediately the "Amendment Fee") in an amount equal to (i) 0.30% of the sum of (a) the outstanding Tranche C Term Loans and (b) the outstanding Revolving Credit Commitments, whether used or unused, of such Lender on the Closing Date (after giving effect to the incurrence prepayments of Tranche C Term Loans made on or prior to the Incremental 2018 Term F Loans Closing Date), to all such Lenders that execute and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered deliver to the Administrative Agent (or its counsel) its executed a signature page to this Agreement at or prior to 12:00 noonAmendment no later than 5:00 p.m., New York City time, on March 5Tuesday, 2015 December 11, 2001, and (each, a “Consenting Lender”), an amendment fee ii) in an amount equal to 0.050.20% of the aggregate sum of (a) the outstanding principal amount Tranche C Term Loans and (b) the outstanding Revolving Credit Commitments, whether used or unused, of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent Lender on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and after giving effect and (C) as to the incumbency and specimen signature prepayments of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable Tranche C Term Loans made on or prior to the Effective Closing Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and), to all such Lenders that execute and deliver to the extent invoicedAdministrative Agent (or its counsel) a signature page to this Amendment after 5:00 p.m., reimbursement or payment of all out-of-pocket expenses required New York City time, on December 11, 2001 and prior to 5:00 p.m., New York City time on December 14, 2001. The Amendment Fee shall be reimbursed or paid by payable on the Borrower hereunder or Closing Date in immediately available funds. Once paid, the Amendment Fee shall not be refundable under any other Loan Documentcircumstances.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. (a) This Agreement Amendment shall become effective on the date (the “Execution Date”) on which the Agent shall have received counterparts of this Amendment executed by the Agent, Borrower, the Guarantors and as the Required Lenders (it being understood and agreed that Section 1 and Section 2 of this Amendment shall not become effective until each of the conditions set forth in clause (b) below has been satisfied in accordance with the terms thereof). Each Required Lender shall be deemed to have consented to this Amendment for all purposes requiring its consent.
(b) The provisions of Section 1 and Section 2 shall become effective on the date (the “Amendment Effective Date”) on which each of the following conditions precedent is satisfied; provided that if such conditions are not satisfied on or prior to the date which is ninety (such date90) days after the Execution Date, the “Effective Date”):this Amendment shall terminate and no longer be in effect and Sections 1 and 2 hereof shall not become effective:
(ai) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, Borrower of a consent fee payable in Dollars for the account of each 2021 Term D Lender (other than a Defaulting Lender) that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its has returned an executed signature page to this Agreement Amendment to the Agent at or prior to 12:00 noon5:00 p.m., New York City timetime on August 10, on March 5, 2015 2010 (each, a the “Consenting LenderConsent Deadline”), an amendment fee ) in an the amount equal to 0.05of 0.10% of the aggregate outstanding principal amount sum of such Consenting Lender’s 2021 Revolving Commitment, Delayed Draw Term D Loan Commitment and outstanding Term Loans as of the Effective Execution Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(cii) The Administrative Permitted Other Indebtedness in the form of notes issued pursuant to Section 10.1(aa) of the Credit Agreement (as amended hereby) shall have been issued in an aggregate principal amount of not less than $500.0 million, and the Net Cash Proceeds thereof shall have been used to prepay Term Loans pursuant to Section 5.2(a)(iii) of the Credit Agreement;
(iii) the Agent shall have received from Borrower a favorable written opinion certificate of an Authorized Officer of the Borrower to the effect that representations and warranties set forth in Section 3 hereof are true and correct on and as of the Amendment Effective Date; and
(iiv) BassCitigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and KKR Capital Markets LLC, as lead arrangers in connection with this Amendment, shall have been paid such fees as the arrangers and the Borrower have separately agreed to; and Borrower shall have paid all reasonable out of pocket costs and expenses of such arrangers and the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment (including the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLC, LLP as counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Agent).
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Agreement, and the obligation of each Incremental Euro Term Lender to make its Incremental Euro Term Loan hereunder, shall become effective on and as of the date (the “Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as duly executed Borrowing Subsidiary Agreement in respect of the Luxembourg Borrower, in form and substance substantially consistent with Exhibit F-1 to the good standing Credit Agreement, (ii) a duly executed Supplement to the Guarantee Agreement, joining the Luxembourg Borrower as a Subsidiary Guarantor thereunder, in form and substance substantially consistent with Exhibit A to the Guarantee Agreement, and (iii) duly executed counterparts of this Agreement which, when taken together, bear the signatures of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of and each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestIncremental Euro Term Lender.
(eb) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer Each of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit AgreementAgreement shall be satisfied, and the Administrative Agent shall have received a certificate to that effect dated as of the Effective Date and executed by a Responsible Officer of the U.S. Borrower.
(fc) As of the Effective Date, and after giving effect to the making of the Incremental Euro Term Loans and the use of the proceeds thereof as provided for herein, Holdings is in pro forma compliance with Section 6.05 and Section 6.06 of the Credit Agreement, and the Administrative Agent shall have received a certificate to that effect dated as of the Effective Date and executed by a Responsible Officer of the U.S. Borrower.
(d) The Administrative Agent shall have received (i) a favorable written opinion of (x) the General Counsel or Deputy General Counsel of the U.S. Borrower, (y) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and (z) ▇▇▇▇▇▇ and Calder (Luxembourg) SARL, Luxembourg counsel for the Luxembourg Borrower, in each case addressed to the Administrative Agent and the Incremental Euro Term Lenders, (ii) board resolutions and (iii) customary officer’s certificates, in each case, with respect to each Loan Party organized under the laws of the United States or Luxembourg and in form and substance substantially consistent with those delivered on the Closing Date. Holdings and the U.S. Borrower hereby request each such counsel to deliver such opinion.
(e) The Administrative Agent shall have received all Fees fees and other amounts due and payable on or prior to the Effective Date, including upfront fees all Upfront Fees (which may be as defined below in the form of original issue discountSection 9) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoicedinvoiced one Business Day prior to the Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers hereunder or under any other Loan Document.
(gf) The Security Documents Administrative Agent shall be in full force and effect on have received, at least two (2) Business Days prior to the Effective Date, all documentation and the Collateral Agent other information reasonably requested by it (on behalf of itself or any Lender) that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Secured Parties shall have USA PATRIOT Act, and to the extent that the Luxembourg Borrower qualifies as a security interest “legal entity customer” under 31 C.F.R. § 10.10.230 (the “Beneficial Ownership Regulation”), a certification regarding beneficial ownership in relation to, and signed by a Responsible Officer of, the Collateral of the type and priority described in each Security Document. Luxembourg Borrower.
(g) The Administrative Agent shall notify the Borrower, have received a Borrowing Request with respect to the Incremental 2018 Euro Term F Lenders and the other Lenders under the Credit Agreement of Loans to be made on the Effective Date and such notice shall be conclusive and bindingin accordance with Section 2.03 of the Credit Agreement.
Appears in 1 contract
Sources: Incremental Term Loan Assumption Agreement (Cbre Group, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of upon the date on which each of Administrative Agent receiving the following conditions precedent is satisfied (such date, and notice thereof shall have been given by the “Effective Date”):Administrative Agent to the Borrower and each Lender:
(a) The Administrative Agent shall have received duly counterparts hereof executed and delivered counterparts on behalf of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, the Agents and each Subsidiary GuarantorLender (or, each Incremental 2018 Term F Lender and in the Required Lenders (determined immediately after giving effect case of any party as to which an executed counterpart shall have not been received, facsimile, telegraphic, telex or other written confirmation, satisfactory to the incurrence Administrative Agent, from such party of execution of the Incremental 2018 Term F Loans and the use of proceeds thereofcounterpart hereof by such party).;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that Lender, a Note, reflecting the increase in such Lender's Commitment Amount pursuant to this Amendment, duly executed and delivered by the Borrower;
(i) counterparts of the Second Amendment to Pledge Agreement and Irrevocable Proxy, dated the date hereof ("Second Amendment to Pledge"), executed on behalf of Plains Holdings II and the Collateral Agent (or, in the case of any party as to which an executed counterpart shall have unconditionally not been received, facsimile, telegraphic, telex or other written confirmation, satisfactory to the Administrative Agent, from such party of execution of the counterpart hereof by such party); (ii) certificates representing the Pledged Common Units owned by Plains Holdings II as of the date of this Amendment, and irrevocably delivered stock powers and instruments of transfer, endorsed in blank, with respect to such certificates; (iii) all documents and instruments, including Uniform Commercial Code Financing Statements (Form UCC-3), required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Pledge Agreement by Plains Holdings II, as amended by the Second Amendment to Pledge; and (iv) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Administrative Agent, dated a date reasonably near to the date of this Amendment, listing all effective financing statements that name Plains Holdings II (under its present name and any previous names) as the debtor and that are filed in the jurisdictions in which filings will be made pursuant to clause (iii) above, together with copies of such financing statements;
(d) from each of the Borrower and Plains Holdings II, a certificate, dated the date hereof, of a duly authorized officer thereof with knowledge of the certifications and statements therein certifying that attached thereto are true, correct and complete copies of: (i) resolutions of its Board of Directors or other governing body then in full force and effect authorizing the execution, delivery and performance of this Amendment, the Notes and each other Loan Document to be executed by it pursuant to this Amendment; (ii) the incumbency and signatures of those of its officers authorized to act with respect to each Loan Document executed by it, upon which certificate each Lender may conclusively rely until it shall have received a further certificate of the Secretary of the Borrower or Plains Holdings II canceling or amending such prior certificate; and (iii) all its Organic Documents;
(e) from Plains Holdings II, certificates of the appropriate government officials of the state of organization of Plains Holdings II as to the existence and good standing of Plains Holdings II, each dated within thirty (30) days prior to the date of delivery pursuant hereto;
(f) (i) for the account of the Administrative Agent, all fees, costs and expenses due and payable pursuant to that certain Fee Letter dated June 6, 2003 from the Administrative Agent to the Borrower, and pursuant to Section 10.3 of the Loan Agreement, if then invoiced and (ii) for the account of each Lender, all fees, costs and expenses due and payable pursuant to that certain Fee Letter dated June 6, 2003 from the Administrative Agent on behalf of each Lender to the Borrower, if then invoiced;
(g) a legal opinion, dated the date of this Amendment and addressed to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonand all Lenders, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLC▇▇▇▇▇▇, L.L.P, special counsel for Parent and to the Borrower, substantially to regarding the effect set forth on Exhibit B-1 enforceability of this Amendment and (ii) related Loan Documents and the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate perfection of the Secretary or Assistant Secretary of each Loan Party dated Liens under the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationSecurity Documents, in each case of such Loan Party as in effect on the Effective Date form and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance acceptable to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), in its reasonable discretion; and
(Bh) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance evidence of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid contemporaneous acquisition by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingPreferred Stock.
Appears in 1 contract
Effectiveness. This Agreement (a) The Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, if any, the “Amendment No. 2 Effective Date”):) that the following conditions have been satisfied:
(ai) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear signature pages hereto from the signatures of ParentNew Tranche A Term Lender, the BorrowerNew Tranche A-2 Term Lender, each Subsidiary Guarantor, each Incremental 2018 Term F the New Revolving Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).each Loan Party;
(bii) The Administrative Agent shall have received payment a Consent substantially in the form of Exhibit A to this Amendment, duly executed by (i) each Existing Tranche A Term Lender, (ii) each Existing Tranche A-2 Term Lender and (iii) each Existing Revolving Lender, and in each case excluding any Non-Extending Lenders;
(iii) The Consents received from the Borrower, Existing Revolving Lenders referred to in clause (ii) above shall constitute the Majority Facility Lenders of the Revolving Facility;
(iv) The Borrower shall have paid to the Administrative Agent for the account of the applicable Lenders, by wire transfer of immediately available funds, (A) to each 2021 Existing Tranche A Term D Lender, Existing Tranche A-2 Term Lender and Existing Revolving Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to executes this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (eachAmendment, a “Consenting Lender”), an amendment consent fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Revolving Commitments, Tranche A Term D Loans and Tranche A-2 Term Loans that have been extended pursuant to the terms of this Amendment and (B) the Accrued Interest Payment;
(v) Each of the representations and warranties made by any Loan Party set forth in Section 2 hereof, Section 4 of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Amendment No. 2 Effective Date. Such fees shall be payable in immediately available funds andDate with the same effect as though made on and as of such date, once paid, shall not be refundable in whole or in part.except to the extent such representations and warranties expressly relate to an earlier date;
(cvi) The Administrative Agent No Default or Event of Default shall have received a favorable written opinion occurred and be continuing, or will result from the execution of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent this Amendment and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.transactions contemplated hereby;
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(evii) The Administrative Agent shall have received a certificate, dated the Effective Closing Date and signed by a Financial Officer two Responsible Officers of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (bclauses 3(a)(v) and (cvi) of Section 4.01 above;
(viii) The Lenders shall have received, sufficiently in advance of the Credit Agreement.Amendment No. 2 Effective Date, (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act (as defined below) and (ii) the Borrower, to the extent it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (as defined below), shall have delivered a certification regarding beneficial ownership required by the Beneficial Ownership Regulation directly to each Lender that so requests in writing at least five Business Days prior to the Amendment No. 2 Effective Date, including, in each case and without limitation, the information described in Section 5; and
(fix) The Administrative Agent shall have received all Fees and other amounts due and payable on received, in immediately available funds, payment or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all costs, fees, out-of-pocket expenses required expenses, compensation and other amounts then due and payable in connection with this Amendment, in each case, to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on extent invoiced at least one Business Day prior to the Amendment No. 2 Effective Date, including the reasonable fees, charges and disbursements of counsel for the Amendment No. 2 Lead Arranger and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgent.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of that the following conditions precedent is have been satisfied or waived (such date, the “Amendment No. 6 Effective Date”):
(a1) The the Administrative Agent shall have received duly executed and delivered counterparts signature pages of this Agreement thatAmendment from each Loan Party, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting and each Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(c2) The the Administrative Agent shall have received a favorable written Note, or an Amended and Restated Note, executed by the Borrowers in favor of each Lender that has requested a Note at least three Business Days prior to the Amendment No. 6 Effective Date;
(3) the Administrative Agent shall have received the Amendment No. 6 Fee Letter, executed by the Parent Borrower and the Administrative Agent;
(4) the Administrative Agent shall have received a legal opinion of (i) Bass, K▇▇▇▇▇▇▇ & E▇▇▇▇ PLCLLP, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 Loan Parties, which opinion shall be in form and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Agent;
(e5) The the Administrative Agent shall have received a certificate, dated the Effective Date and solvency certificate signed by a the Chief Financial Officer (or other officer with substantially similar responsibilities) of the Borrower, confirming compliance with Parent Borrower certifying as to the conditions precedent solvency (as set forth in paragraphs (b) and (cSection 5.16 of the Amended Credit Agreement) of Section 4.01 of the Credit Agreement.Borrowers and their Subsidiaries, on a consolidated basis, on the Amendment No. 6 Effective Date;
(f6) The the Administrative Agent shall have received all Fees and other amounts due and payable on or prior to a certificate of each Loan Party, dated the Amendment No. 6 Effective Date, including upfront fees (which may be substantially in the form of original issue discountExhibit I to the Amended Credit Agreement, with appropriate insertions and attachments;
(7) the Administrative Agent shall have received good standing certificates of each Loan Party from its jurisdiction of organization;
(8) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Parent Borrower certifying (i) as to the matters set forth in Section 3 hereof and (ii) that since October 1, 2022, no Material Adverse Effect has occurred;
(9) the amounts agreed with each Incremental 2018 Term F Lender Administrative Agent shall have received a Borrowing Base Certificate, dated as of the Amendment No. 6 Effective Date that calculates the Borrowing Base as of January 28, 2023, and executed by a Responsible Officer of the Parent Borrower; and
(10) the Borrower shall have paid, or concurrently herewith shall pay, to the Administrative Agent such fees as have separately been agreed by the Parent Borrower and the Administrative Agent (including such fees contained in the Amendment No. 6 Fee Letter and the legal fees of the Administrative Agent to the extent invoicedan invoice therefor is received by the Parent Borrower at least three (3) business days prior to the Amendment No. 6 Effective Date). For purposes of determining compliance with the conditions specified in this Section 3, reimbursement the Administrative Agent, Co-Collateral Agent and each Lender party hereto shall be deemed to have consented to, approved or payment of all out-of-pocket expenses required accepted or to be reimbursed satisfied with, each document or paid other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective DateAdministrative Agent, and the Co-Collateral Agent on behalf of or such Lender, unless the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received written notice from such Person prior to the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Amendment No. 6 Effective Date and such notice shall be conclusive and bindingspecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Effectiveness. This Agreement shall become effective on and as of only upon the date on which each satisfaction of the following conditions precedent is satisfied (the date of such date, satisfaction of the following conditions being referred to herein as the “Effective Date”):
(a) The Borrower, the Administrative Agent Agent[, each Issuing Lender] and the [Increasing Lender[s]/Additional Lender] shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Agreement.
(b) The Administrative Agent [New Commitment/Additional Lender Commitment] shall have received payment from the Borrower, not be for the account an amount less than $10,000,000 (and increments of each 2021 Term D Lender $10,000,000 above that shall have unconditionally and irrevocably delivered to minimum) unless the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of otherwise consents; provided that the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of Incremental Increases under the Effective Date. Such fees shall be payable in immediately available funds and, once paid, Credit Agreement shall not be refundable in whole or in partexceed $50,000,000.
(c) The Administrative Agent As of the effective date of such Incremental Increase, no Default or Event of Default shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent occurred and the Borrower, substantially be continuing immediately after giving effect to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2such increase.
(d) The Administrative Agent shall have received (i) a certificate from an Authorized Officer of the Borrower certifying as to the good standing of each Loan Party as of a recent datematters set forth in Section 1.03(b), from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereofSection 1.03(g) and (2) the certificate or articles Section 1.04 of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestAgreement.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by certificate of a Financial Responsible Officer of the Borrower, confirming compliance Borrower (i) setting forth resolutions of its board of directors or other appropriate governing body with respect to the conditions precedent set forth in paragraphs (b) authorization of the Borrower to execute and deliver this Agreement and (cii) otherwise substantially in the form of the certificate delivered on the Closing Date pursuant to Section 4.01 4.1(f) of the Credit Agreement, with appropriate insertions and attachments referenced in such section, and if no amendments or other modifications have been made to the attachments and documents included in such certificate since the Closing Date, certification by such Responsible Officer that no changes have occurred in any such documents, as applicable.
(f) [The Administrative Agent administrative agent shall have received all Fees and other amounts due and payable on or prior reaffirmation agreements and/or such amendments to the Security Instruments as may be reasonably requested by the Administrative Agent in order to ensure that such incremental indebtedness is provided with the benefit of the applicable Loan Documents.]
(g) Unless the Borrower pays any required compensation pursuant to Section 3.3 of the Credit Agreement, no Eurodollar Advances shall be outstanding as of the Effective Date, including upfront fees (which may be in or if any Eurodollar Advances are outstanding, then the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents Effective Date shall be in full force and effect have occurred on the Effective Date, and the Collateral Agent on behalf last day of the Secured Parties shall have a security interest Interest Period in the Collateral respect of the type and priority described in each Security Documentsuch Eurodollar Advances. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement [Increasing Lender/Additional Lender] of the Effective Date Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement shall become effective on and as The consummation of the date on which each transactions or amendments, as applicable, set forth in Sections 3, 4 and 5 hereof shall be subject to the satisfaction or waiver of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) each Loan Party, (ii) each Issuing Bank, (iii) the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Swingline Lender and the Required Lenders (iv) each Revolving Lender (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans transactions described in Sections 3 and the use of proceeds thereof4 hereof).
(b) The Administrative Agent shall have received payment from (i) with respect to each Loan Party, a secretary’s certificates of the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably type delivered to the Administrative Agent (or its counselpursuant to Section 4.01(c) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Credit Agreement, dated as of the Amendment Effective Date (including the attachments thereto and a good standing certificate dated as of a date substantially concurrent with the Amendment Effective Date. Such fees shall be payable ) and (ii) a certificate of a Responsible Officer of the Borrower confirming compliance with the condition set forth in immediately available funds and, once paid, shall not be refundable in whole or in partparagraph (c) of this Section 7.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent representations and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect warranties set forth in Exhibit B-2Section 6 hereof shall be true and correct as of the Amendment Effective Date.
(d) The Administrative Agent and the Revolving Lenders shall have received (i) a certificate as payment of all fees and expenses required to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary be paid or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date reimbursed by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement Borrower or any other document delivered Loan Party under or in connection herewith on behalf of such with this Amendment and any other Loan Party; (iii) a certificate of another officer as to the incumbency Document, including those fees and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestexpenses set forth in Section 12 hereof.
(e) The Administrative Agent Borrower shall have received a certificatepaid to the Administrative Agent, dated for the Effective Date and signed by a Financial Officer account of the BorrowerRevolving Lenders, confirming compliance with the conditions precedent set forth Issuing Banks and the Swingline Lender, all unpaid interest and fees in paragraphs (b) and (c) of Section 4.01 respect of the Revolving Commitments, the Revolving Loans, the Swingline Loans and the Letters of Credit Agreementthat have accrued through (but not including) the Amendment Effective Date.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or received, at least five Business Days prior to the Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including upfront fees the USA PATRIOT Act, that has been requested by the Administrative Agent (which may be in the form on its own behalf or on behalf of original issue discountany Lender) in the amounts agreed with each Incremental 2018 Term F Lender and, at least ten Business Days prior to the extent invoiced, reimbursement Amendment Effective Date (or payment of all out-of-pocket expenses required to be reimbursed or paid by such shorter period as the Borrower hereunder or under any other Loan DocumentAdministrative Agent shall have agreed).
(g) The Security Documents shall be in full force and effect on To the Effective Dateextent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, and the Collateral Agent on behalf of the Secured Parties Borrower shall have delivered to the Administrative Agent and any Revolving Lender that has requested, in a security interest written notice to the Borrower, a Beneficial Ownership Certification in relation to the Collateral of Borrower, a Beneficial Ownership Certification not later than ten Business Days prior to the type and priority described in each Security Document. The Amendment Effective Date (or such shorter period as the Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement have agreed). For purposes of the Effective Date foregoing, “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, and such notice shall be conclusive and binding“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
Appears in 1 contract
Sources: Amendment No. 1 to the Amended and Restated Credit Agreement (Chemours Co)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Amendment No. 8 Effective Date”):) that the following conditions have been satisfied:
(ai) The Administrative Agent shall have received duly executed signature pages hereto from each Loan Party and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).2025 Refinancing Lender;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(cii) The Administrative Agent shall have received a favorable written opinion customary certificate from a Responsible Officer of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially Borrower certifying to the effect set forth on Exhibit B-1 accuracy of the representations and (ii) the general counsel warranties specified in Section 3 of Parent, substantially to the effect set forth in Exhibit B-2.this Amendment;
(diii) The Administrative Agent shall have received (A) (i) a recently dated certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State Borrower under the laws of its state jurisdiction of organization; incorporation, and (ii) a certificate of the Secretary secretary or Assistant Secretary assistant secretary of each Loan Party dated the Effective Date and Borrower certifying (Ax) that attached thereto is a are true and complete copy copies of (1) the by-laws (certificate of incorporation, certificate of formation or equivalent thereof) formation document of the Borrower, and (2) the certificate or articles of incorporationall amendments thereto, certified as of a recent date by the Secretary appropriate Governmental Authority in its jurisdiction of State incorporation, (2) the bylaws, operation agreement, limited liability company agreement or equivalent document of the applicable state of organization, in each case of such Loan Party Borrower 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Amendment No. 8 Effective Date, and (3) the Second Restatement Effective Date or resolutions of the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy board of resolutions duly adopted by the Board of Directors directors (or equivalent thereofother appropriate governing body) of such Loan Party the Borrower, authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which such person the Borrower is contemplated to be a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (Cy) as to the incumbency and specimen genuineness of the signature of each officer of the Borrower executing this Agreement or any other document delivered in connection herewith on behalf of such Loan PartyDocuments; (iiiB) a certificate of another officer as an opinion from (i) Ropes & Gray LLP, special New York counsel to the incumbency Loan Parties, addressed to the Administrative Agent and specimen signature of the Secretary or Assistant Secretary executing 2025 Refinancing Lenders on the certificate pursuant to clause Amendment No. 8 Effective Date and (ii) above; ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇., general counsel to the Loan Parties, addressed to the Administrative Agent and the 2025 Refinancing Lenders on the Amendment No. 8 Effective Date and (C) reasonably satisfactory results of recent UCC, tax and judgment Lien searches with respect to each Loan Party;
(iv) such The Administrative Agent and the 2025 Refinancing Lenders shall have received at least two (2) Business Days prior to the Amendment No. 8 Effective Date all documentation and other documents information about the Borrower as has been reasonably requested in writing at least ten (10) Business Days prior to the Amendment No. 8 Effective Date by the Administrative Agent may or the 2025 Refinancing Lenders that they reasonably request.determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(ev) The Administrative Agent and the 2025 Refinancing Lenders shall have received the fees in the amounts previously agreed in writing to be received on the Amendment No. 8 Effective Date, and all reasonable and documented out-of-pocket expenses (including the reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent and the Left-Lead Arranger) required to be paid or reimbursed for which invoices have been presented a reasonable period of time prior to the Amendment No. 8 Effective Date shall have been paid;
(vi) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer Committed Loan Notice in respect of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b2025 Refinancing Term Loans as required by Section 2.02(a) and (c) of Section 4.01 of the Credit Agreement.; and
(fvii) The Administrative Agent Borrower shall have received paid all Fees accrued and other amounts due and payable on or prior unpaid interest with respect to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Existing Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders Loans under the Credit Agreement Agreement. For purposes of determining whether the Effective Date and such notice conditions set forth in this Section 4 have been satisfied, by releasing its signature page hereto, each 2025 Refinancing Lender party hereto shall be conclusive and bindingdeemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, such 2025 Refinancing Lender.
Appears in 1 contract
Sources: Credit Agreement (Frontier Communications Parent, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the first date (the “Amendment No. 2 Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, signature pages hereto from the Borrower, each Subsidiary Guarantorother Loan Party, each Revolving Credit Lender (constituting all Revolving Credit Lenders under the Credit Agreement), each L/C Issuer (constituting all L/C Issuers under the Credit Agreement), the 2022 Super Senior Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Administrative Agent;
(b) The Administrative Agent At least five Business Days shall have received payment from passed since the Borrower, date the draft of this Amendment was posted for the account Initial Term Lenders’ review, and each of each 2021 the Initial Term D Lender that Lenders comprising the Required Lenders shall not have unconditionally and irrevocably delivered objected to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Benchmark Replacement Adjustment therein;
(c) The Administrative Agent Agent, the Revolving Credit Lenders, the L/C Issuers and the 2022 Super Senior Incremental Term Lender shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially at least three Business Days prior to the effect set forth on Exhibit B-1 Amendment No. 2 Effective Date all documentation and (ii) other information about the general counsel of Parent, substantially Loan Parties as has been reasonably requested in writing at least 10 Business Days prior to the effect set forth in Exhibit B-2.Amendment No. 2 Effective Date by the Administrative Agent, the Revolving Credit Lenders, the L/C Issuers or the 2022 Super Senior Incremental Term Lender that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(d) The Administrative Agent shall have received (ix) a customary officer’s certificate as to the good standing of each Loan Party with respect to (A) its Organization Documents (which may be in the form of a certification from such Loan Party that there have been no changes from the Organization Documents previously delivered to the Administrative Agent), (B) resolutions and (C) incumbency (which may be in the form of a certification from such Loan Party that there have been no changes from the incumbency previously delivered to the Administrative Agent) and (y) certificates of good standing or status (to the extent that such concepts exist), dated as of a recent date, from the Secretary applicable secretary of State of its state of organization; (iior equivalent authority) a certificate of the Secretary jurisdiction of organization or Assistant Secretary formation of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date prior case, to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as extent applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.;
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by certificate of a Financial Responsible Officer of the Borrower, dated as of the Amendment No. 2 Effective Date, confirming compliance with the satisfaction of the conditions precedent set forth in paragraphs clause (bg) and (c) of Section 4.01 of the Credit Agreement.below;
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior (i) a legal opinion from Freshfields Bruckhaus D▇▇▇▇▇▇▇ US LLP, counsel to the Loan Parties, and (ii) a legal opinion from internal counsel of the Borrower, each addressed to the Administrative Agent, the Revolving Credit Lenders, the L/C Issuers and the 2022 Super Senior Incremental Term Lender;
(g) Each of the representations and warranties contained in Section 6 hereof shall be true and correct in all material respects on and as of the Amendment No. 2 Effective Date;
(h) The Administrative Agent shall have received a Committed Loan Notice in respect of the 2022 Super Senior Incremental Term Loans as required by Section 2.02(a) of the Credit Agreement;
(i) The Arrangers listed in Section 9(b) hereto shall have received (A) (i) an upfront fee of 0.25% of the aggregate amount of the Revolving Credit Commitments of each Revolving Credit Lender the Maturity Date of which is being extended through this Amendment and (ii) an upfront fee (or, including upfront fees (which may be in at the form of 2022 Super Senior Incremental Term Lender’s election, original issue discount) of 5.0% of the aggregate principal amount of the 2022 Super Senior Incremental Term Loans for the account of the 2022 Super Senior Incremental Term Lender, (B) without duplication of any amounts described in the preceding clause (A), other fees in the amounts agreed with each Incremental 2018 Term F Lender andin writing to be received on the Amendment No. 2 Effective Date, to the extent invoiced, reimbursement or payment of and (C) all reasonable and documented out-of-pocket expenses (including the reasonable fees, charges and disbursements of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent and the Arrangers) required to be paid or reimbursed or paid by in accordance with Section 10.04 of the Borrower hereunder or under any other Loan Document.Credit Agreement for which invoices have been presented a reasonable period of time prior to the Amendment No. 2 Effective Date shall have been paid;
(gj) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received a certificate from the chief financial officer of the Borrower substantially in the form of Exhibit N of the Credit Agreement, modified as appropriate to certify as to the Borrower, ’s solvency as of the Amendment No. 2 Effective Date after giving effect to the incurrence of the 2022 Super Senior Incremental 2018 Term F Lenders Loans; and
(k) The Administrative Agent shall have received all accrued and the other Lenders unpaid interest and Commitment Fees under the Revolving Credit Agreement Facility for the account of the Effective Date and such notice shall be conclusive and binding.Revolving Credit Lenders through the Amendment No. 2
Appears in 1 contract
Effectiveness. This Agreement Except as expressly provided in the next succeeding paragraph of this Section 11, this Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied first above written (such date, the “Amendment No. 4 Effective Date”):) when:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) each Loan Party, the Borrower(ii) each Tranche B-1 Euro Term Lender, (iii) each Subsidiary Guarantor, each Incremental 2018 Tranche B-1 US$ Term F Lender and (iv) Lenders under the Credit Agreement that, immediately prior to the effectiveness of this Amendment, constitute the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The the Administrative Agent shall have received payment from (i) with respect to each Loan Party, secretary’s certificates of the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably type delivered to the Administrative Agent pursuant to Section 4.01(c) of the Credit Agreement, dated as of the Amendment No. 4 Effective Date (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonincluding the attachments thereto and, New York City time, on March 5, 2015 (eachexcept in the case of ChemFirst Inc., a Mississippi corporation (“Consenting LenderChemFirst”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans a good standing certificate dated as of a date substantially concurrent with the Amendment No. 4 Effective Date. Such fees shall be payable ), (ii) a certificate of a Responsible Officer confirming compliance with the condition set forth in immediately available funds and, once paid, shall not be refundable in whole or in part.
paragraph (cd) The Administrative Agent shall have received of this Section 11 and (iii) a favorable written opinion (addressed to the Administrative Agent, the Issuing Banks and the Lenders (including, without limitation, the Tranche B-1 Euro Term Lenders and the Tranche B-1 US$ Term Lenders)), in form and substance reasonably satisfactory to the Administrative Agent, of (i) Bass, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, counsel for Parent and the BorrowerLoan Parties, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party dated as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Amendment No. 4 Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of covering such Loan Party as in effect on the Effective Date and at all times since a date prior matters relating to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true Loan Parties and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents Amendment as the Administrative Agent may reasonably request.;
(c) the Administrative Agent and the Lenders (including, without limitation, the Tranche B-1 Euro Term Lenders and the Tranche B-1 US$ Term Lenders) shall have received payment of all fees and expenses required to be paid or reimbursed by the Borrower or any other Loan Party under or in connection with this Amendment and any other Loan Document, including those expenses set forth in Section 17 hereof;
(d) the representations and warranties set forth in Section 10 hereof shall be true and correct as of the Amendment No. 4 Effective Date;
(e) The the Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of from the Borrower, confirming in accordance with Section 2.03 of the Credit Agreement (giving effect to the amendments to such Section contemplated hereby), a Borrowing Request with respect to the funding of the Tranche B-1 Euro Term Loans and the Tranche B-1 US$ Term Loans on the Amendment No. 4 Effective Date;
(f) the Administrative Agent shall have received from the Borrower, in accordance with Section 2.11 of the Credit Agreement, a notice of prepayment with respect to the prepayment of all the outstanding principal amount of the Tranche B Term Loans on the Amendment No. 4 Effective Date; and
(g) the Administrative Agent shall have received from the Borrower (i) a completed “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency (or any successor Governmental Authority performing a similar function) (a “Flood Certificate”) with respect to each Mortgaged Property, which Flood Certificate shall (A) be addressed to the Administrative Agent, (B) be completed by a company which has guaranteed the accuracy of the information contained therein and (C) otherwise comply with the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994, the Flood Insurance Reform Act of 2004 and The ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Flood Insurance Reform Act of 2012 (in each case as amended from time to time) and any successor statutes (collectively, the “Flood Program”); (ii) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (iii) if any Flood Certificate states that a Mortgaged Property is located in an area having special flood hazards as described in the National Flood Insurance Act of 1968 (as amended from time to time) and any successor statute (a “Flood Zone”), the Borrower’s written acknowledgment of receipt of written notification from the Administrative Agent (A) as to the existence of each such Mortgaged Property and (B) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (iv) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with the conditions precedent set forth in paragraphs (b) Flood Program and all regulations promulgated thereunder. Notwithstanding the foregoing, the amendment to paragraph (c) of Section 4.01 2.11 of the Credit Agreement.
(fAgreement that is set forth in Section 3(h) The hereof shall become effective immediately upon the Administrative Agent having received counterparts of this Amendment that, when taken together, bear the signatures of (i) each Loan Party and (ii) Lenders under the Credit Agreement that, immediately prior to the effectiveness of the amendment set forth in Section 3(h) hereof, constitute the Required Lenders. In addition, each of the representation and warranty set forth in Section 10(b) hereof and the condition to effectiveness set forth in clause (d) of this Section 11, in each case solely in respect of the representation and warranty set forth in clause (a) of Section 3.01 of the Credit Agreement (solely as such representation and warranty applies to the good standing of ChemFirst Inc. in the State of Mississippi), shall have received all Fees be deemed to be true and other amounts due correct (in the case of Section 10(b) hereof) and payable satisfied (in the case of clause (d) of this Section 11) in the event that the Borrower has delivered to the Administrative Agent, on or prior to the Amendment No. 4 Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, evidence reasonably satisfactory to the extent invoiced, reimbursement or payment of Administrative Agent that all out-of-pocket expenses payments required to be reimbursed or paid made by ChemFirst to cause it to be in good standing in the State of Mississippi as of the Amendment No. 4 Effective Date have been made; provided, however, that the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on cause ChemFirst to deliver to the Effective Date, and Administrative Agent a certificate from the Collateral Agent on behalf Secretary of State of the Secured Parties shall have a security interest State of Mississippi indicating that ChemFirst is in good standing in the Collateral State of Mississippi no later than the type and priority described in each Security Documentdate that is 30 days after the Amendment No. The 4 Effective Date (or such later date as the Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingmay agree in its sole discretion).
Appears in 1 contract
Sources: Credit Agreement (Chemours Co)
Effectiveness. This Amendment and the amendment and restatement of the Credit Agreement effected hereby shall become effective on and as of the first date on or before September 30, 2004 (the "Amendment Effective Date") on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement hereof that, when taken together, bear the signatures of Parent, (i) the Borrower, (ii) each Subsidiary Guarantor, each Incremental 2018 Term F Renewing Lender and the Required Lenders (determined immediately after giving effect to the incurrence iii) each Additional Lender. The aggregate amount of the Incremental 2018 New Term F Loan Commitments of the Additional Term Lenders, plus the aggregate amount of Exchanged Loans and the use shall equal $450,000,000. The aggregate amount of proceeds thereof)New Revolving Commitments shall equal $950,000,000.
(b) The conditions to the making of the New Term Loans set forth in Section 3(d) hereof shall have been satisfied.
(c) To the extent invoiced, the Administrative Agent shall have received payment from or reimbursement of its reasonable out-of-pocket expenses in connection with this Amendment, including the Borrowerreasonable fees, charges and disbursements of counsel for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Agent.
(d) The Administrative Agent shall have received evidence that the Borrower has made the payments referred to in Section 3(f) or is making such payments on the Amendment Effective Date with the proceeds of the Additional Term Loans and such other funds as may be required.
(ie) The Borrower shall have paid the Administrative Agent, in immediately available funds, for the account of each Revolving Lender that has executed and delivered this Amendment prior to 5:00 p.m., New York City time, on September 22, 2004, a certificate as fee equal to 0.25% of such Lender's New Revolving Commitment.
(f) The Senior Collateral Documents shall have been amended, to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date extent deemed reasonably necessary by the Secretary Borrower and the Administrative Agent, to provide for the release or nonapplicability of State Liens thereunder in respect of Securitization Assets at such time as they are transferred to a Securitization Vehicle in connection with a Securitization permitted by the applicable state Credit Agreement, as amended hereby. Each Lender executing this Amendment hereby authorizes the Agents, on its behalf, to enter into any such amendments as well as any intercreditor agreement confirming such release or nonapplicability of organizationLiens (and containing other customary provisions) with the providers of any such Securitization financings or an agent or trustee on their behalf, in each case 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, (or, if such by-laws (may be deemed necessary or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted appropriate by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestAgents.
(eg) The Administrative Agent shall have received a certificate, dated from the Effective Date and signed Borrower all Schedules required by a Financial Officer the terms of the BorrowerCredit Agreement to be provided as of the Restatement Effective Date, confirming compliance with each such Schedule to be in a form reasonably acceptable to the Administrative Agent.
(h) Each of the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent Agreement shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Documentbeen satisfied. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other New Lenders under the Credit Agreement of the Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment shall not become effective, and the obligations of the New Lenders hereunder to make New Term Loans and undertake New Revolving Commitments will automatically terminate, if each of the conditions set forth or referred to in Section 3(d) and 4 hereof has not been satisfied at or prior to 5:00 p.m., New York City time, on September 30, 2004.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of hereof when the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative the Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, hereof signed by the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans Banks and Bridge Banks and each Subsidiary Guarantor (or, in the use case of proceeds thereofany party as to which an executed counterpart shall not have been received, the Agent shall have received 27009/007/AMEND.96/amend.3 3 telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party).;
(b) The Administrative Agent the Borrower shall have received payment from paid all amounts which it is required to pay pursuant to Section 9.03 of the BorrowerCredit Agreement or Section 8.03 of the Bridge Credit Agreement, and for the account of each 2021 Term D Lender that which a statement shall have unconditionally and irrevocably been delivered to the Administrative Borrower and the Agent (or its counsel) its executed signature page to this Agreement at on or prior to 12:00 noonSeptember 27, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.1996;
(c) The Administrative the Agent shall have received a favorable written opinion copy of (i) Bassthe resolutions of the Board of Directors of the Borrower and each Subsidiary Guarantor authorizing the execution, ▇▇▇▇▇ & ▇▇▇▇ PLCdelivery and performance of this Amendment, counsel for Parent satisfactory in form and the Borrower, substantially substance to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Agent;
(d) The Administrative the Agent shall have received (i) a certificate as to copy of the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate certificates of the Secretary or an Assistant Secretary of the Borrower and each Loan Party dated Subsidiary Guarantor certifying the Effective Date names and certifying true signatures of the officers of the Borrower and each Subsidiary Guarantor who shall be authorized to sign this Amendment, satisfactory in form and substance to the Agent; and
(A) that attached thereto is a true and complete copy of (1e) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of Agent shall have received a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date copy of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party the Borrower authorizing the execution, delivery and performance of the Loan Documents to which such person is Stock Purchase Agreement and approving a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer proposed restructuring of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders 's obligations under the Credit Agreement and Bridge Credit Agreement in accordance with the draft "Summary of the Effective Date Terms and such notice shall be conclusive and bindingConditions" dated September 26, 1996.
Appears in 1 contract
Sources: Credit Agreement (Perini Corp)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of that the following conditions precedent is have been satisfied or waived (such date, the “Amendment No. 7 Effective Date”):
(a1) The the Administrative Agent shall have received duly executed and delivered counterparts signature pages of this Agreement thatAmendment from each Loan Party, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting and each Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(c2) The the Administrative Agent shall have received a favorable written Note, or an Amended and Restated Note, executed by the Borrowers in favor of each Lender that has requested a Note at least three Business Days prior to the Amendment No. 7 Effective Date;
(3) the Administrative Agent shall have received the Amended and Restated Fee Letter, executed by the Parent Borrower and the Administrative Agent;
(4) the Administrative Agent shall have received a legal opinion of (i) Bass, K▇▇▇▇▇▇▇ & E▇▇▇▇ PLCLLP, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 Loan Parties, which opinion shall be in form and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Agent;
(e5) The the Administrative Agent shall have received a certificate, dated the Effective Date and solvency certificate signed by a the Chief Financial Officer (or other officer with substantially similar responsibilities) of the Borrower, confirming compliance with Parent Borrower certifying as to the conditions precedent solvency (as set forth in paragraphs (b) and (cSection 5.16 of the Amended Credit Agreement) of Section 4.01 of the Credit Agreement.Borrowers and their Subsidiaries, on a consolidated basis, on the Amendment No. 7 Effective Date;
(f6) The the Administrative Agent shall have received all Fees a certificate of each Loan Party, dated the Amendment No. 7 Effective Date, substantially in the form of Exhibit I to the Amended Credit Agreement, with appropriate insertions and other amounts due attachments, or certifying that there have been no changes to such insertions and payable attachments since the date of last delivery to the Administrative Agent, as applicable;
(7) the Administrative Agent shall have received good standing certificates of each Loan Party from its jurisdiction of organization;
(8) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Parent Borrower certifying (i) as to the matters set forth in Section 3 hereof and (ii) that since September 30, 2023, no Material Adverse Effect has occurred;
(9) the results of a recent lien search in each of the jurisdictions where assets of the Loan Parties are located, and such search shall reveal no liens on any of the assets of the Loan Parties except for Permitted Liens or Liens discharged on or prior to the Amendment No. 7 Effective DateDate pursuant to documentation satisfactory to the Administrative Agent;
(10) the Administrative Agent shall have received a Borrowing Base Certificate, including upfront fees dated as of the Amendment No. 7 Effective Date that calculates the Borrowing Base as of February 24, 2024, and executed by a Responsible Office of the Parent Borrower; and
(which may be in 11) the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andBorrower shall have paid, or concurrently herewith shall pay, to the Administrative Agent such fees as have separately been agreed by the Parent Borrower and the Administrative Agent (including such fees contained in the Amended and Restated Fee Letter and the legal fees of the Administrative Agent to the extent invoicedan invoice therefor is received by the Parent Borrower at least three (3) business days prior to the Amendment No. 7 Effective Date). For purposes of determining compliance with the conditions specified in this Section 4, reimbursement the Administrative Agent, Co-Collateral Agent and each Lender party hereto shall be deemed to have consented to, approved or payment of all out-of-pocket expenses required accepted or to be reimbursed satisfied with, each document or paid other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective DateAdministrative Agent, and the Co-Collateral Agent on behalf of or such Lender, unless the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify have received written notice from such Person prior to the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Amendment No. 7 Effective Date and such notice shall be conclusive and bindingspecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Effectiveness. This Agreement Second Amendment shall become effective as of the date (the “Second Amendment Effective Date”) on which the following conditions have been satisfied:
1. the Administrative Agent shall have received copies of signature pages to this Second Amendment, duly executed and delivered (including by way of facsimile or other electronic transmission) by the Administrative Agent, the Loan Parties and the Required Lenders;
(a) no Default shall have occurred and be continuing on the Second Amendment Effective Date or would occur after giving effect to this Second Amendment and (b) both immediately before and after giving effect to this Second Amendment, each of the representations and warranties made by any Loan Party set forth in Article III of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date Second Amendment Effective Date with the same effect as though made on which each and as of the following conditions precedent is satisfied (such date, except to the “Effective Date”):extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date);
(a) The Administrative Agent 3. the Borrower shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect paid to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the BorrowerAgent, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably has delivered to the Administrative Agent (or its counsel) its an executed signature page to counterpart of this Agreement at Second Amendment on or prior to 12:00 noon, New York City time, on March 5July 15, 2015 (each2016, a “Consenting Lender”), an amendment fee in an aggregate amount equal to 0.050.10% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion sum of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to aggregate principal amount of all Term Loans of such Lender outstanding on the effect set forth on Exhibit B-1 Second Amendment Effective Date and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case Revolving Commitment of such Loan Party Lender as in effect on the Second Amendment Effective Date and at all times since a date prior to Date; and
4. the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation Borrower shall have not been amended or modified since any delivery thereof paid to the Administrative Agent on and its Affiliates, all costs, fees and expenses (including legal fees and expenses of White & Case LLP) owing in connection with this Second Amendment and the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the other Loan Documents to which such person is a party, the extent invoiced (in the case of costs and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (Cexpenses) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or at least one Business Day prior to the Second Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Third Amendment shall become effective as of the date (the “Third Amendment Effective Date”) on which the following conditions have been satisfied:
1. the Administrative Agent shall have received copies of signature pages to this Third Amendment, duly executed and delivered (including by way of facsimile or other electronic transmission) by the Administrative Agent, the Loan Parties and the Required Lenders;
(a) no Default shall have occurred and be continuing on the Third Amendment Effective Date or would occur after giving effect to this Third Amendment and (b) both immediately before and after giving effect to this Third Amendment, each of the representations and warranties made by any Loan Party set forth in Article III of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date Third Amendment Effective Date with the same effect as though made on which each and as of the following conditions precedent is satisfied (such date, except to the “Effective Date”):extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date);
(a) The Administrative Agent 3. the Borrower shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect paid to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the BorrowerAgent, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably has delivered to the Administrative Agent (or its counsel) its an executed signature page to counterpart of this Agreement at Third Amendment on or prior to 12:00 noon5:00 p.m., New York City time, on March 5September 19, 2015 (each2016, a “Consenting Lender”), an amendment fee in an aggregate amount equal to 0.051.25% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion sum of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially aggregate principal amount of all Term Loans of such Lender outstanding on the Third Amendment Effective Date (calculated prior to giving effect to the effect set forth on Exhibit B-1 Third Amendment Effective Date Prepayment (as defined below)) and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case Revolving Commitment of such Loan Party Lender as in effect on the Third Amendment Effective Date and at all times since a date prior to Date;
4. the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation Borrower shall have not been amended or modified since any delivery thereof paid to the Administrative Agent on and its Affiliates, all costs, fees and expenses (including legal fees and expenses of White & Case LLP) owing in connection with this Third Amendment and the Closing other Loan Documents to the extent invoiced (in the case of costs and expenses) at least one Business Day prior to the Third Amendment Effective Date, ; and
5. substantially simultaneously with the First Restatement Third Amendment Effective Date, the Second Restatement Administrative Borrower shall prepay outstanding Initial Term Loans in an aggregate principal amount equal to $75,000,000 (the “Third Amendment Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurredPrepayment”) (together with all accrued interest thereon), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance which Third Amendment Effective Date Prepayment shall be applied to reduce future scheduled amortization payments of the Initial Term Loans required under Section 2.09 (including the payment due on the applicable Term Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Maturity Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andinverse order of maturity; provided, to that, for the extent invoicedavoidance of doubt, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) such prepayment does not constitute Debt Service. The Security Documents Third Amendment Effective Date Prepayment shall be in full force and effect on the Effective Datedeemed an optional prepayment pursuant to Section 2.10; provided, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrowerthat, the Incremental 2018 Term F Lenders requirements that the Borrowers provide notice of such prepayment under Section 2.10(e) and the other Lenders pay any breakage loss, costs or expenses under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingSection 2.13 are hereby waived.
Appears in 1 contract
Effectiveness. (a) This Agreement shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):
) on which (ai) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parenteach Parent Guarantor, the Borrower, the Administrative Agent, the L/C Issuer, the Co-Syndication Agents, and each Subsidiary Guarantor, each Incremental 2018 Term F Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile device) the Required Lenders (determined immediately after giving effect same to the incurrence Administrative Agent at the Administrative Agent’s Office and (ii) the conditions contained in Sections 4.01 and 4.02 shall have been satisfied or deemed satisfied pursuant to Section 4.02 (or waived by the Majority Lenders, or to the extent required by Section 10.01, all the Lenders). Unless the Administrative Agent has received actual notice from any Lender that the conditions contained in Sections 4.01 and 4.02 have not been met to its satisfaction in accordance with Section 4.02, upon the satisfaction of the Incremental 2018 Term F Loans condition described in clause (i) of the immediately preceding sentence and upon the use Administrative Agent’s good faith determination that the conditions described in clause (ii) of proceeds thereofthe immediately preceding sentence have been met, then the Effective Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Effective Date shall not release any Parent Guarantor or the Borrower from any liability for failure to satisfy one or more of the applicable conditions contained in Sections 4.01 and 4.02).
(b) The Administrative Agent shall have received payment from the BorrowerThis Agreement constitutes an amendment, for the account of each 2021 Term D Lender that shall have unconditionally restatement and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% extension of the aggregate outstanding principal amount of Existing Nexstar Credit Agreement and as such Consenting Lender’s 2021 Term D Loans as supersedes the Existing Nexstar Credit Agreement in its entirety; provided, however, that in no event shall the Liens or Guaranty Agreements securing the Existing Nexstar Credit Agreement or the obligations thereunder be deemed affected hereby, it being the intent and agreement of the Effective Date. Such fees shall be payable Ultimate Parent, the Borrower and the Subsidiaries of the Ultimate Parent parties hereto that the Guaranty Agreements and the Liens on the Collateral granted to secure the obligations of the Ultimate Parent, the Borrower and the Subsidiaries of the Ultimate Parent in immediately available funds and, once paidconnection with the Existing Nexstar Credit Agreement and/or the Guaranty Agreements, shall not be refundable in whole or in partextinguished and shall remain valid, binding and enforceable securing the obligations under the Existing Nexstar Credit Agreement as amended and restated hereby.
(c) The Administrative Agent shall have received a favorable written opinion Each of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent the Lenders hereby consents to amendments to each of the Security Documents and the Borrower, substantially Guaranty Agreements to conform the definitions and references set forth therein to the effect set forth on Exhibit B-1 applicable definitions and (ii) the general counsel of Parent, substantially to the effect references set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate this Agreement. Each of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and Lenders hereby authorizes the Collateral Agent to execute and deliver the Confirmation Agreements on behalf of the Secured Parties shall have a security interest in the Collateral Lenders with respect to each of the type Security Documents and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingGuaranty Agreements.
Appears in 1 contract
Effectiveness. (a) This Third Restatement Agreement (other than this Section 8 and Sections 3, 4, 11, 12 and 13 hereof, which shall be effective as to each signatory hereto immediately upon the delivery of its signature page hereto) shall become effective on and as of the first date (the “Third Restatement Effective Date”) on which each of the following conditions precedent is shall have been satisfied (such dateor waived) (which, in the “Effective Date”case of clauses (v), (vi), (vii) and (viii) below, may be concurrent with the satisfaction of the other conditions specified below):
(ai) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement hereof that, when taken together, bear the signatures of ParentHoldings, the Borrower, each Subsidiary Guarantor2013 Term Loan Lender, each Incremental 2018 Term F 2013 Revolving Facility Lender, the Required Lenders, the Administrative Agent, the Swingline Lender and the Required Lenders Issuing Bank.
(determined ii) The conditions set forth in Sections 4.01(b) and (c) of each of the Original Credit Agreement and the Third Restated Credit Agreement shall be satisfied on and as of the Third Restatement Effective Date immediately before (in the case of the Original Credit Agreement) and immediately after (in the case of the Third Restated Credit Agreement) giving effect to this Third Restatement Agreement (it being understood that the incurrence occurrence of the Incremental 2018 Term F Loans Third Restatement Effective Date shall be deemed a Credit Event), and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from a certificate of a Responsible Officer of the Borrower, for dated the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Third Restatement Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partto such effect.
(ciii) The Administrative Agent shall have received a favorable written legal opinion addressed to the Lenders, the Administrative Agent, the Swingline Lender and the Issuing Bank (A) of (i) Bass, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ PLCLLP, special New York counsel for Parent Holdings and the BorrowerCompany and (B) ▇▇▇▇▇▇▇ (Cayman) Ltd., substantially special Cayman Islands counsel for the Administrative Agent and the Lenders, in each case in form and substance reasonably satisfactory to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Administrative Agent.
(div) The Administrative Agent shall have received (ix) a certificate as from a Responsible Officer of Holdings certifying that, after giving effect to this Third Restatement Agreement, the Term Loan Refinancing and the Revolving Facility Refinancing, Holdings, the Borrower and each of its Subsidiaries (on a consolidated basis) are solvent, in form and substance reasonably satisfactory to the good standing of each Loan Party as of a recent dateAdministrative Agent, from the Secretary of State of its state of organization; (iiy) a certificate of good standing (or analogous certificate in such jurisdiction, to the Secretary extent such concept or Assistant Secretary a similar concept exists under the laws of such jurisdiction) with respect to each of Holdings and the Borrower, from the jurisdiction of its organization and (z) a closing certificate executed by a Responsible Officer of each Loan Party of Holdings and the Borrower, dated the Third Restatement Effective Date Date, as reasonably requested by the Administrative Agent, certifying as to the incumbency and certifying specimen signature of each officer executing this Third Restatement Agreement or any other document delivered in connection herewith on behalf of Holdings or the Borrower and attaching (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or of incorporation and/or memorandum and articles of incorporationassociation of Holdings and the Borrower, including all amendments thereto, as in effect on the Third Restatement Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the applicable state jurisdiction of its organization, in each case of such Loan Party as in effect on the Effective Date and at all times that has not been amended since a date prior to the date of the resolutions described in last amendment thereto shown on the certificate of good standing furnished pursuant to clause (y) above, (B) below, (or, if such a true and complete copy of the by-laws (or equivalent thereofgoverning document) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to Holdings and the Administrative Agent Borrower as in effect on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), and (BC) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereofgoverning body) of such Loan Party each of Holdings and the Borrower authorizing the execution, delivery and performance of this Third Restatement Agreement, and the performance of the Third Restated Credit Agreement and the Loan Documents to which such person is a party, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requesteffect.
(ev) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of payment from the Borrower, confirming compliance (x) for the account of each 2013 Term Loan Lender, of an upfront fee (the “TL Upfront Fee”) in an amount equal to 1.0% of the 2013 Term Loans of such 2013 Term Loan Lender and (y) for the account of each 2013 Revolving Facility Lender, of an upfront fee (the “RCF Upfront Fee” and, together with the conditions precedent set forth TL Upfront Fee, the “Upfront Fees”) in paragraphs (b) and (c) of Section 4.01 an amount equal to 1.0% of the Credit Agreement2013 Revolving Facility Commitment of such 2013 Revolving Facility Lender, which Upfront Fees shall be earned, due and payable in immediately available funds on the Third Restatement Effective Date, and, once paid, shall be non-refundable.
(fvi) The Administrative Agent Borrower shall have received paid all Fees fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (i) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Third Restatement Agreement required to be reimbursed or paid by in connection with this Third Restatement Agreement and (ii) of counsel to the Borrower hereunder or under any Administrative Agent (limited to the reasonable documented fees, charges and disbursements of White & Case LLP and, if necessary, one local counsel in each relevant jurisdiction) in connection with this Third Restatement Agreement, in each case to the extent invoiced prior to the date on which all other Loan Documentconditions to this Third Restatement Agreement have been satisfied.
(gvii) The Security Documents On or prior to the Third Restatement Effective Date and concurrently with the incurrence of the 2013 Term Loans, all Existing Non-Extended Term Loans and New Term Loans outstanding as of the Third Restatement Effective Date shall be have been repaid in full force full, together with all interest, fees and effect on other amounts accrued with respect to such Term Loans as of the Third Restatement Effective Date, pursuant to arrangements satisfactory to the Administrative Agent, the Borrower and the applicable Lenders.
(viii) On or prior to the Third Restatement Effective Date and concurrently with the incurrence of Revolving Facility Loans under the 2013 Revolving Facility, all Indebtedness of Holdings and its Subsidiaries under the Existing Revolving Facility (as defined in the Original Credit Agreement) shall have been repaid in full, together with all interest, Revolving Facility Commitment Fees, L/C Participation Fees and other amounts accrued under such Existing Revolving Facility as of the Third Restatement Effective Date, and the Collateral Agent on behalf all commitments under such Existing Revolving Facility shall have been terminated, it being acknowledged and agreed that all Letters of Credit issued pursuant to such Existing Revolving Facility and outstanding as of the Secured Parties Third Restatement Effective Date shall remain outstanding and be deemed to have a security interest in been issued under the Collateral Third Restated Credit Agreement.
(b) Notwithstanding the foregoing, this Third Restatement Agreement shall not become effective if each of the type and priority described conditions set forth or referred to in each Security Document. The Administrative Agent shall notify Section 8(a) has not been satisfied at or prior to 11:59 p.m., New York City time, on April 11, 2013 (it being understood that any such failure of the Borrower, the Incremental 2018 Term F Lenders and the other Lenders Third Restatement Effective Date to occur will not affect any rights or obligations of any Person under the Original Credit Agreement of the Effective Date and such notice shall be conclusive and bindingAgreement).
Appears in 1 contract
Sources: Credit Agreement (Edwards Group LTD)
Effectiveness. This Agreement The amendments described in Section 1 above shall become effective on and as of the date on which when (the "EFFECTIVE DATE") each of the following conditions precedent is satisfied (such date, the “Effective Date”):Purchaser has received:
(a) The Administrative Agent shall have received duly executed the fees referred to in Section 5 below and delivered counterparts all costs and expenses of this Agreement that, when taken together, bear the signatures such Purchaser (including reasonable fees and disbursements of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect special counsel to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Purchasers) in connection with this letter;
(b) the following documents, each (including, with limitation, those referred to in clause (vii) below) in a form and substance satisfactory to the Purchasers:
(i) counterparts of this letter agreement executed by the Company and the Purchasers;
(ii) the Guaranty, signed by each Guarantor;
(iii) The Administrative Agent shall Security Agreement signed by the Company and each Guarantor, together with evidence, satisfactory to the Purchasers, that the Company and each Guarantor have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Collateral Agent all financing statements and other documents necessary to perfect the Collateral Agent's Lien on all collateral granted under the Security Agreement;
(or its counseliv) its the Pledge Agreement, executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of by the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Company and each Guarantor that as of the Effective Date. Such fees shall Date has one or more Subsidiaries, together with all stock certificates, stock powers and other items required to be payable delivered in immediately available funds connection therewith;
(v) the Intercreditor Agreement, signed by the parties thereto and consented to by the Company and the Guarantors;
(vi) the Trademark Security Agreement, signed by the Company;
(vii) evidence that each of the "Operative Documents" as defined in the Synthetic Lease Guaranty, the Private Placement Agreement (each as defined in the Intercreditor Agreement) and the Amended and Restated Credit Agreement, dated as of July 1, 1997, among the Company, various financial institutions, and BofA, as agent, has been amended to conform in all material respects with the representations, warranties, covenants and defaults contained in this Agreement; and, once paid, shall not be refundable
(viii) an opinion of counsel to the Company and the Guarantors in whole or in part.form and substance reasonably acceptable to the Purchasers;
(c) The Administrative Agent All corporate and other proceedings in connection with the transactions contemplated by this letter agreement shall be satisfactory to the Purchasers and their counsel, and the Purchasers shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary all such counterpart originals or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (certified or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case other copies 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent they may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Truserv Corp)
Effectiveness. This Agreement Refinancing Amendment, and the obligation of each Refinancing Term Lender to make the Refinancing Term Loan to be made by it pursuant to Section 2(c)(i) of this Refinancing Amendment, shall become effective on and as of the date on which (the “First Refinancing Term Loan Effective Date”) when each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The Administrative the Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parentfrom each Loan Party, the Borrower, Agent and each Subsidiary Guarantor, each Incremental 2018 Refinancing Term F Lender and either (i) a counterpart of the Required Lenders Refinancing Amendment signed on behalf of such party or (determined immediately after giving effect ii) written evidence satisfactory to the incurrence Agent (which may include telecopy or electronic transmission of a signed signature page of the Incremental 2018 Term F Loans and Amendment) that such party has signed a counterpart of the use of proceeds thereof).Amendment;
(b) The Administrative the Borrower shall have paid all fees due and payable to CGMI and JPMS pursuant to that certain engagement letter, dated as of July 9, 2013 (the “Engagement Letter”), among the Borrower, Holdings, CGMI and JPMS;
(c) the Agent and the Arrangers shall have received all reasonable and documented costs and expenses required to be paid or reimbursed under Section 10.05 of the Loan Agreement or the Engagement Letter for which invoices have been presented a reasonable period of time prior to the First Refinancing Term Loan Effective Date;
(d) the Agent shall have received payment from the Borrower the Borrower, for ’s Payment;
(e) the account representations and warranties set forth in Section 5 of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees Refinancing Amendment shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.true and correct;
(cf) The Administrative the Agent shall have received a favorable written opinion for each of the Loan Parties:
(i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or an Assistant Secretary of each Loan Party that entity dated the First Refinancing Term Loan Effective Date substantially in the form of the certificates delivered pursuant to Section 4.01(b)(iii) of the Loan Agreement, and certifying attaching the documents referred to in clauses (Aii) that attached thereto is through (iv) below;
(ii) a true and complete copy of (1) the by-laws (such entity’s certificate of incorporation or equivalent thereof) and (2) the certificate or articles of incorporationformation, as amended, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case its incorporation or formation;
(iii) a true and complete copy of such Loan Party the by-laws or limited liability company operating agreement of that entity as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described certification referred to in clause (Bi) below, above;
(or, if such by-laws (or equivalent thereofiv) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) managers of such Loan Party that entity authorizing the Refinancing, the execution, delivery and performance in accordance with their respective terms of this Refinancing Amendment, the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; documents required or contemplated hereunder;
(iiiv) a certificate of another officer such Secretary of State, dated as of a recent date, as to the incumbency good standing of and specimen signature payment of taxes by that entity and as to the charter documents on file in the office of such Secretary of State; and
(vi) a favorable written opinion of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, dated as of the Secretary or Assistant Secretary executing date of the certificate pursuant First Refinancing Term Loan Effective Date, in a form reasonably acceptable to clause (ii) abovethe Agent; and (iv) such other documents as the Administrative Agent may reasonably request.and
(eg) The Administrative the conditions set forth in Section 4.02(b) and 4.02(c) of the Loan Agreement shall be satisfied on and as of the First Refinancing Term Loan Effective Date, both immediately prior to and immediately after giving effect to the transactions contemplated by this Agreement, and the Agent shall have received a certificate, dated the Effective Date and signed by certificate of a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior Borrower as to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentforegoing.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement shall become effective on and as of the date (the "Effective Date") on which each or before December 15, 2011 that all of the following conditions precedent is satisfied (such date, the “Effective Date”):
have been satisfied: (a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees and other amounts due and payable by the Borrower on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andincluding, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder and (b) the Agent shall have received (with sufficient copies for the Lenders) each of the following:
(i) Copies of the articles or under any other Loan Documentcertificate of incorporation of the Borrower, together with all amendments, and a certificate of existence, certified by the appropriate governmental officer in its jurisdiction of incorporation.
(gii) The Security Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its bylaws and of its Board of Directors' resolutions authorizing the execution of the Loan Documents by the Borrower.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in full force and effect on writing by the Borrower.
(iv) A certificate, signed by the chief financial officer or the controller of the Borrower, stating, as of the Effective Date, that (A) no Default or Unmatured Default has occurred and is continuing, (B) the Collateral Agent on behalf Borrower is in compliance with Section 6.11 and setting forth in reasonable detail the calculation of the Secured Parties shall have a security interest ratio set forth therein, determined as of September 30, 2011, and (C) the representations and warranties contained in Article V are true and correct.
(v) A written opinion of counsel to the Borrower, substantially in the Collateral form of Exhibit B.
(vi) Evidence, in form and substance satisfactory to the type Agent, that the Borrower has obtained all governmental approvals, if any, necessary for it to enter into the Loan Documents.
(vii) A Note executed by the Borrower in favor of each Lender that has requested a Note pursuant to Section 2.11.
(viii) Evidence, in form and priority described in each Security Document. The Administrative Agent shall notify substance satisfactory to the Agent, that all outstanding amounts under that certain Credit Agreement, dated as of December 4, 2009, among the Borrower, the Incremental 2018 Term F Lenders lenders party thereto and Bank of America, as administrative agent and that certain Credit Agreement, dated as of June 12, 2009, between the Borrower and Barclays Bank PLC shall have been repaid and all commitments thereunder terminated.
(ix) Such other Lenders under documents as any Lender or its counsel may have reasonably requested. Without limiting the Credit Agreement generality of the provisions of Section 10.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Effective Date and such notice shall be conclusive and bindingspecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Portland General Electric Co /Or/)
Effectiveness. (a) This Agreement Amendment shall become effective on the date (the “Execution Date”) on which the Administrative Agent shall have received counterparts of this Amendment executed by the Administrative Agent, Borrower, the Guarantors, the Required Lenders and Extending Lenders holding 2014 Term Loans with respect to which they have agreed to convert all or a portion of such 2014 Term Loans into 2017 Term Loans pursuant to the terms of this Amendment in an aggregate principal amount of at least $2,500,000,000 (or such lesser amount as the Borrower may designate to the Administrative Agent, for the Administrative Agent’s distribution to the Lenders, prior to the 2012 Extension Effective Date); provided that Sections 1, 2 and 3 of this Amendment shall not become operative until each of the conditions set forth in clause (b) below has been satisfied in accordance with the terms thereof. Each Extending Lender shall be deemed to have consented to this Amendment (including without limitation the Additional Amendments) for all purposes requiring its consent. Each Lender that submits an executed counterpart hereto acknowledges and agrees that in the absence of a change to the terms and conditions of this Amendment (including Exhibit A hereto), in each case that is (x) materially adverse to the Lenders and (y) made after the submission of executed counterpart, such submission is irrevocable.
(b) The provisions of Sections 1, 2 and 3 of this Amendment shall become operative on the date (the “2012 Extension Effective Date”) on which each of the following conditions precedent is satisfied; provided that if such conditions are not satisfied on or prior to the date which is ninety (such date90) days after the Execution Date, this Amendment shall terminate and no longer be in effect and Sections 1, 2 and 3 hereof shall not become operative:
(i) Permitted Other Indebtedness in the form of notes issued pursuant to Section 10.1(bb)(i)(a) of the Credit Agreement shall have been issued in a minimum aggregate principal amount (and yielded gross cash proceeds) of not less than the lesser of (a) $1,000,000,000 and (b) 30% of the aggregate principal amount of all outstanding 2017 Term Loans on the 2012 Extension Effective Date which are Opt-In Extended Loans (the lesser of (a) and (b), the “Effective DatePrepayment Proceeds”):), and the Net Cash Proceeds attributable to such Prepayment Proceeds shall have been used to prepay 2017 Term Loans which are Opt-In Extended Loans pursuant to Section 5.1(a) of the Credit Agreement; it being understood that, if such offering of Permitted Other Indebtedness yields aggregate gross proceeds in excess of the Prepayment Proceeds (such excess gross proceeds, the “Additional Gross Proceeds”), the Borrower shall be entitled to retain the Additional Gross Proceeds and utilize the Additional Gross Proceeds in any manner not prohibited by the Credit Agreement, including, but not limited to, the further prepayment of Loans in accordance with the terms of the Credit Agreement, as amended hereby; for purposes of determining the Net Cash Proceeds attributable to the Prepayment Proceeds, the Borrower may only deduct from the Prepayment Proceeds the items described in clauses (vi) and (vii) of the definition of Net Cash Proceeds (as amended hereby). Any fees and expenses associated with the underwriting and/or issuance of Permitted Other Indebtedness shall be allocated proportionately among the Prepayment Proceeds and any Additional Gross Proceeds, if any, and any fees and expenses associated with this Amendment or the 2012 Term Loan Extension shall be allocated to the Prepayment Proceeds;
(aii) The the Administrative Agent shall have received duly executed and delivered counterparts from Borrower a certificate of this Agreement that, when taken together, bear an Authorized Officer of the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect Borrower to the incurrence of the Incremental 2018 Term F Loans effect that representations and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally warranties set forth in Section 4 hereof are true and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, correct on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans and as of the 2012 Extension Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (iiiii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Credit Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Credit Party (other than First Data Retail ATM Services L.P. and FundsXpress Financial Network, Inc.) as of a recent date, from the such Secretary of State of its state of organization; or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary an Authorized Officer of each Loan Credit Party dated the 2012 Extension Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws or operating (or equivalent thereoflimited liability company) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case agreement of such Loan Credit 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement 2012 Extension Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent thereofgoverning body) of such Loan Credit Party authorizing the execution, delivery and performance of the Loan Credit Documents to which such person Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation or organization of such Credit Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (CD) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith Credit Document on behalf of such Loan Party; (iii) a certificate of Credit Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary an Authorized Officer executing the certificate pursuant to clause (ii) above; and ;
(iv) Credit Suisse Securities (USA) LLC and the other entities appointed as such, as joint lead arrangers (the “Amendment Arrangers”) in connection with this Amendment, shall have been paid such other documents fees the Amendment Arrangers and the Borrower have separately agreed to; and Borrower shall have paid all reasonable out of pocket costs and expenses of such Amendment Arrangers and the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment (including the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as counsel to the Administrative Agent);
(v) the Administrative Agent shall have received, for the account of each Lender which delivers a duly executed signature page consenting to this Amendment by 5:00 p.m., New York City time, on February 29, 2012, an amendment fee equal to 0.10% of the aggregate principal amount of such Lender’s Term Loans and Revolving Commitments voted in approval of this Amendment;
(vi) the Administrative Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, an executed legal opinion covering such matters as the Administrative Agent may reasonably request.request and otherwise reasonably satisfactory to the Administrative Agent; and
(evii) The the Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all outcompleted “Life-of-pocket expenses required Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to be reimbursed or paid each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower hereunder or under and each Credit Party relating thereto) and if any other Loan Documentsuch Mortgaged Property is located in a special flood hazard area, evidence of flood insurance in form and substance reasonably acceptable to Administrative Agent.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (First Data Corp)
Effectiveness. This Agreement Term Increase Amendment shall become effective on and as of the date on which each hereof (the “Term Increase Effective Date”), subject to the satisfaction of the following conditions precedent is satisfied (such date, the “Effective Date”):conditions:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall have received be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Loan Party, each dated the Term Increase Effective Date (or, in the case of certificates of governmental officials, a recent date before such date) and each in form and substance satisfactory to the Agent:
(i) this Term Increase Amendment duly executed and delivered counterparts by each of this Agreement thatthe Borrowers, when taken together, bear the signatures of ParentHoldings, the Borrowerother Loan Parties party hereto, the Agent and each Subsidiary Guarantor, each Incremental 2018 Term F Increase Lender party hereto;
(ii) a certificate signed by an Authorized Officer of Holdings and the Required Lenders Borrowers certifying (determined immediately after giving effect A) that the conditions specified in Section 4.02 have been satisfied, (B) that the borrowing of the Amendment No. 1 Term Increase on the Term Increase Effective Date does not conflict with the Material Documents, (C) as to matters required under Section 4(b), and (D) that the Term Increase Conditions as defined in the Credit Agreement (other than the conditions described in clauses (c), (d) and (e) of the definition thereof) have been satisfied;
(iii) an opinion of one or more special or local counsel to Holdings, the Borrowers and the other Loan Parties, addressed to the incurrence Agent and each Lender as to such matters as the Agent may reasonably request; and
(iv) bring down certificates of good standing (to the extent such concept exists) from the secretary of state of the Incremental 2018 state of organization of each Loan Party (or any immediate predecessor thereof) (to the extent such concept exists in such jurisdiction) and copies of certified resolutions dated after the Effective Date or other appropriate evidence of the authority of each Loan Party to incur such the Amendment No. 1 Term F Loans and the use of proceeds thereof)Increase.
(b) The Administrative Agent There shall have received payment from been no event or circumstance since January 30, 2017 that has had or would reasonably be expected to have, either individually or in the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (eachaggregate, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partMaterial Adverse Effect.
(c) The Administrative Agent Existing Second Lien Credit Agreement and the Existing Second Lien Notes shall have received been amended in a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially manner satisfactory to the effect set forth on Exhibit B-1 Effective Date Term Lenders and (ii) the general counsel of ParentTerm Increase Lenders, substantially to the effect set forth in Exhibit B-2their sole discretion.
(d) The Administrative Agent Additional Term Lenders and other Term Lenders who agree to provide such Term Increase shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, Borrowers reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentfees and expenses.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. (a) This Agreement Supplemental Indenture No. 13 shall become effective and binding, but not operative, on the Company, the Guarantor, the Trustee and every Holder of a series of Notes issued and identified on Schedule I as of the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)hereof.
(b) The Administrative Agent Proposed Amendments, as set forth in Article 2 hereof, shall become operative with respect to the Notes at such time that the following conditions (the “Additional Conditions”) are satisfied or otherwise waived by the Company:
(1) the Company, Guarantor and Trustee shall have executed one or more supplemental indentures (including this Supplemental Indenture No. 13) implementing the Proposed Amendments with respect to each series of Securities outstanding at such time under the Indenture;
(2) there shall not have been instituted or threatened or be pending any action, suit or other proceeding or investigation by any governmental authority or agency or any other person that (x) questions the legality, validity, binding effect, enforceability or effectiveness of the Proposed Amendments or the entering into of this Supplemental Indenture No. 13 in respect of any series of Notes; (y) seeks to have the Notes of any series paid before maturity or which questions the accuracy or completeness of any of the statements made in the Consent Solicitation Statement or in any of the other documents referred to therein; or (z) if adversely determined, would make unlawful or invalid, would enjoin the implementation of, or would impose damages as a result of, the implementation of the Proposed Amendments with respect to any series of Notes, the entering into of this Supplemental Indenture No. 13 or any other action contemplated by the Consent Solicitation Statement; and
(3) the Trustee shall have received payment written notice from the Borrower, for Company stating that the account Additional Conditions set forth in clauses (1) and (2) of each 2021 Term D Lender that shall this Section 3.01(b) have unconditionally and irrevocably delivered to been satisfied or otherwise waived by the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partCompany.
(c) The Administrative Agent Upon becoming operative (and not before), all provisions of this Supplemental Indenture No. 13 shall have received be deemed to be incorporated in, and made part of, the Indenture with respect to the Notes and each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a favorable written opinion of reference to the Indenture as amended and supplemented by this Supplemental Indenture No. 13 with respect to the Notes, unless the context otherwise requires. Upon becoming operative (i) Bassand not before), ▇▇▇▇▇ & ▇▇▇▇ PLCthe Indenture as amended and supplemented by this Supplemental Indenture No. 13 shall be read, counsel for Parent taken and construed as one and the Borrower, substantially same instrument with respect to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2Notes.
(d) The Administrative Agent Company, in its sole discretion, may determine that this Supplemental Indenture No. 13 shall have received (i) a certificate as to the good standing of each Loan Party as of a recent dateno effect, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have shall not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a partybecome operative, and that the Proposed Amendments shall not constitute a part of the Indenture by providing notice to such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestTrustee.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Second A&R Waiver shall become effective on and as of the first date (the “Second A&R Waiver Effective Date”) on which each of the following conditions precedent set forth in this Section 5 is satisfied (such date, the “Effective Date”)::
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its shall have received counterparts of this Second A&R Waiver duly and validly executed signature page and delivered by duly authorized officers of:
(i) each Loan Party;
(ii) the Administrative Agent; and
(iii) the Required Banks;
(b) after giving effect to this Agreement at or prior to 12:00 noonSecond A&R Waiver, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee the representations and warranties of such Loan Party contained in an amount equal to 0.05% Article IV of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans Credit Agreement and in the other Loan Documents to which it is a party shall be true and correct in all material respects on and as of the Effective Date. Such fees date hereof as though made on and as of the date hereof (other than (i) those representations and warranties that expressly relate to a specific earlier date, which representations and warranties shall be payable true and correct in immediately available funds andall material respects as of such earlier date and (ii) those representations and warranties that are by their terms subject to a materiality qualifier, once paid, which representations and warranties shall not be refundable true and correct in whole or in part.all respects);
(c) The Administrative Agent after giving effect to this Second A&R Waiver, no Event of Default under the Credit Agreement shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent occurred and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.be continuing;
(d) The Administrative Agent the Borrowers shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date paid all reasonable and certifying (A) that attached thereto is a true documented fees and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required of counsel and advisors for the Administrative Agent which are payable pursuant to be reimbursed or paid by Section 9.04 of the Borrower hereunder or under any other Loan Document.Credit Agreement, to the extent invoiced at least one Business Day prior to the Second A&R Waiver Effective Date; and
(ge) The Security Documents shall be a forbearance or other agreement in full force form and effect on substance satisfactory to the Administrative Agent (the “Forbearance Agreement”) shall, prior to or contemporaneously with the Second A&R Waiver Effective Date, have been executed and delivered to the Collateral Agent on behalf Borrowers by holders of (i) greater than 40% of the Secured Parties shall have a security interest in aggregate outstanding obligations under the Collateral 2022 Notes and (ii) greater than 50% of the type and priority described in aggregate outstanding obligations under each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and of the other Lenders under the Credit Rowan Notes, which Forbearance Agreement of the Effective Date and such notice shall be conclusive and bindingeffective in accordance with its terms.
Appears in 1 contract
Effectiveness. This Agreement Incremental Agreement, and the obligation of each Tranche B Term Lender to make the Incremental Term Loan to be made by it pursuant to Section 2(c)(i) of this Incremental Agreement, shall become effective on and as of the date on which (the “First Incremental Agreement Effective Date”) when each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parentfrom each Credit Party, the Borrower, Administrative Agent and each Subsidiary Guarantor, each Incremental 2018 Tranche B Term F Lender and the Required Lenders either (determined immediately after giving effect to the incurrence i) a counterpart of the Incremental 2018 Term F Loans and Agreement signed on behalf of such party or (ii) written evidence satisfactory to the use Administrative Agent (which may include telecopy or electronic transmission of proceeds thereof).a signed signature page of this Incremental Agreement) that such party has signed a counterpart of this Incremental Agreement;
(b) The the Borrower shall have paid all fees required to be paid to each Arranger in connection with this Agreement as separately agreed;
(c) the Administrative Agent and the Arrangers shall have received payment for all reasonable and documented costs and expenses required to be paid or reimbursed under Section 13.5 of the Credit Agreement or that certain Engagement Letter, dated as of May 30, 2017 (the “Engagement Letter”) among the Borrower, Holdings and the Arrangers for which invoices have been presented a reasonable period of time prior to the First Incremental Agreement Effective Date;
(d) to the extent required pursuant to this Incremental Agreement, the Administrative Agent shall have received payment from the Borrower the Borrower, for ’s Payment;
(e) the account representations and warranties set forth in Section 5 of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Incremental Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds true and correct; and, once paid, shall not be refundable in whole or in part.
(cf) The the Administrative Agent shall have received a favorable written opinion of received:
(i) Bassa certificate of each Credit Party, dated the First Incremental Agreement Effective Date, substantially consistent with the certificates delivered on the Closing Date pursuant to Section 6.5 of the Credit Agreement or otherwise reasonably acceptable to the Administrative Agent;
(ii) a certificate of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party;
(iii) a written Notice of Borrowing in respect of the Tranche B Term Loans; and
(iv) a written notice of prepayment in respect of the Initial Term Loans; and
(v) a legal opinion of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ PLCLLP, counsel for Parent to Holdings, the Borrower and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationSubsidiaries, in each case of such Loan Party as in effect on the Effective Date form and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestAgent.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement The amendments set forth in Part I of Section 1 of this Amendment shall become effective as provided therein. The amendments set forth in Part II of Section 1 of this Amendment shall become effective on and as of the date (such date, the “Amendment No. 1 Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):has been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and signature pages hereto from (i) the Required Lenders under and as defined in the Credit Agreement, (determined immediately after giving effect to the incurrence ii) each Lender with a Restatement Effective Date Term Loan and (iii) each of the Incremental 2018 Term F Loans and the use of proceeds thereof).Loan Parties;
(b) The Administrative Agent Bank of America, N.A shall have received payment from (i) all fees required to be paid on the Borrowereffective date of this Amendment as separately agreed between the Borrower and Bank of America, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent N.A. (or its counselaffiliate) its executed signature page and (ii) payment of all expenses required to this be paid or reimbursed under Section 10.04(a) of the Credit Agreement at or for which invoices have been presented a reasonable period of time prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Amendment No. 1 Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(c) The Administrative Agent shall have received reasonably satisfactory evidence of authorization of this Amendment by the Loan Parties and a favorable written opinion certificate of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and a Responsible Officer of the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially Borrower to the effect set forth in Exhibit B-2Section 2 above.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date Borrower all accrued and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect unpaid interest on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or Term Loans to but excluding the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAmendment No. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.1
Appears in 1 contract
Effectiveness. This Agreement and the amendment and restatement of the Existing Credit Agreement in the form of the Restated Credit Agreement shall become effective on and as of the first date on which each of the following conditions precedent is satisfied (such date, the “Restatement Effective Date”):) on which:
(a) The the Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement hereof that, when taken together, bear the authorized signatures of Parent, each Borrower and all the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The the Administrative Agent shall have received payment from such documents and certificates as the BorrowerAdministrative Agent or its counsel may reasonably request relating to the organization, for the account existence and, where applicable, good standing of each 2021 Term D Lender that shall have unconditionally Borrower and irrevocably delivered the authorization of this Agreement, in form and substance reasonably satisfactory to the Administrative Agent (or and its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.;
(c) The the Administrative Agent shall have received a favorable written opinion opinions (addressed to the Administrative Agent and the Lenders dated the Restatement Effective Date) of (i) BassCravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Borrowers and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, counsel for Parent in each case in form and the Borrower, substantially substance reasonably satisfactory to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Administrative Agent;
(d) The the Administrative Agent shall have received (i) a certificate as to an Acknowledgment and Consent, substantially in the good standing form of Annex I hereto, duly executed and delivered by each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Guarantor;
(e) The the Administrative Agent shall have received a certificatecertificate from each Borrower, in form and substance reasonably satisfactory to the Administrative Agent, dated the Restatement Effective Date and signed by the president, a Financial Officer vice president, a financial officer or an equivalent officer of the such Borrower, confirming that on and as of the Restatement Effective Date (i) the representations and warranties of the Credit Parties set forth in the Credit Documents are true and correct in all material respects and (ii) no Default or Event of Default has occurred or is continuing; and
(f) the Administrative Agent shall have received, for the account of each Lender, a consent fee as set forth on Annex II hereto. Without limiting the generality of the provisions of Article VIII of the Existing Credit Agreement, for purposes of determining compliance with the conditions precedent set forth specified in paragraphs (b) this Section 4, each Lender shall be deemed to have accepted, and (c) of to be satisfied with, each document or other matter required under this Section 4.01 of 4 unless the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or notice from such Lender prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the proposed Restatement Effective Date and such notice shall be conclusive and bindingspecifying its objections thereto.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc.)
Effectiveness. This Agreement First Amendment shall become effective on and as of the date 12:01 a.m. Eastern Standard Time on which each of the following conditions precedent is satisfied May 10, 2012 (such date, the “First Amendment Effective Date”):
(a) The when, and only when, the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender notifies Parent that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its has received:
(a) multiple original counterparts from each party hereto, as requested by the Administrative Agent, of this First Amendment duly and validly executed signature page and delivered by duly authorized officers of each such party;
(b) legal opinions of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands and British Virgin Islands counsel for the Loan Parties, in form and substance reasonably satisfactory to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Administrative Agent;
(c) The Administrative Agent shall have received a favorable written opinion legal opinions of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC▇▇▇▇▇, LLP, U.S. and United Kingdom counsel for Parent the Loan Parties, in form and the Borrower, substantially substance reasonably satisfactory to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Administrative Agent;
(d) The a legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Nevada counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent shall have received Agent;
(ie) a certificate as promissory note payable to the good standing order of each Loan Party as of a recent dateBank, from executed by the Secretary of State of its state of organization; Borrowers;
(iif) a certificate of the Secretary or an Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1i) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State resolutions of the applicable state Board of organizationDirectors of such Loan Party approving this First Amendment, the other Loan Documents, and the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Loan Party;
(g) a certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 5.01(d) of the Credit Agreement is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2011, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Loan Parties in Section 4.01 (as amended by this First Amendment) are correct in effect all material respects on the Effective Date and at all times since a date prior to as of the date of the resolutions described Closing Date (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in clause all material respects as of such earlier date), and (Bv) belowthe annual audited financials for the fiscal year ended December 31, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof 2011 delivered to the Administrative Agent on prior to the Closing Date, are true and correct copies of such financials, fairly present the First Restatement Effective Datefinancial condition of the Parent as of such dates, and were, to the Second Restatement Effective Date or the Third Restatement Effective Datebest of such officer's knowledge, as applicableprepared in conformity with GAAP;
(i) certificates of existence, certifying that no such amendment or modification has occurred)good standing and qualification from appropriate state officials with respect to EII, EUI, Pride and ENSCO Investments, (Bii) that attached thereto is a true such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent reasonably requests with respect to EOIC, ENSCO Overseas and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the executionGlobal, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer such corresponding certificates or other documents from British Virgin Islands officials or agencies as the Administrative Agent reasonably requests with respect to the incumbency Pride International and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; Global IV and (iv) such corresponding certificates or other documents from English officials or agencies as the Administrative Agent reasonably requests with respect to the Parent and EUL;
(i) evidence of appointment by each of the Parent, EUL, EOIC, Pride International, Global IV, ENSCO Overseas and Global Limited of the Process Agent as its domestic process agent in accordance with Section 8.14 of the Credit Agreement;
(j) evidence of payment by the Loan Parties of (i) an upfront fee to the Administrative Agent for the account of each Bank in an amount equal to 0.03% of such Bank's Commitment, (ii) each other fee that any Loan Party has agreed in writing to pay in connection with this First Amendment or the Credit Agreement, and (iii) all other fees, costs and expenses payable by the Loan Parties on the date hereof pursuant to the Credit Agreement, including the fees and expenses of counsel to the Administrative Agent pursuant to invoices presented for payment on or prior to the Closing Date; and
(k) such other documents, governmental certificates, conditions, agreements and lien searches as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: 364 Day Credit Agreement and Guaranty Agreement (Ensco PLC)
Effectiveness. This Agreement Incremental Agreement, and the obligation of each Tranche B Term Lender to make the Incremental Term Loan to be made by it pursuant to Section 2(d)(i) of this Incremental Agreement, shall become effective on and as of the date on which (the “First Incremental Agreement Effective Date”) when each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parentfrom each Credit Party, the BorrowerAdministrative Agent, each Subsidiary Guarantor, each Incremental 2018 Tranche B Term F Lender and the Required Lenders each Revolving Credit Lender either (determined immediately after giving effect to the incurrence i) a counterpart of the Incremental 2018 Term F Loans and Agreement signed on behalf of such party or (ii) written evidence satisfactory to the use Administrative Agent (which may include telecopy or electronic transmission of proceeds thereof).a signed signature page of this Incremental Agreement) that such party has signed a counterpart of this Incremental Agreement;
(b) The the Borrower shall have paid all fees required to be paid to the Arrangers in connection with this Incremental Agreement as separately agreed;
(c) the Administrative Agent and the Arrangers shall have received payment for all reasonable and documented costs and expenses required to be paid or reimbursed under Section 13.5 of the Credit Agreement or that certain Engagement Letter, dated as of January 22, 2018 (the “Engagement Letter”) among the Borrower, Holdings and the Arrangers for which invoices have been presented a reasonable period of time prior to the First Incremental Agreement Effective Date;
(d) to the extent required pursuant to this Incremental Agreement, the Administrative Agent shall have received payment from the Borrower, for ’s Payment;
(e) the account representations and warranties set forth in Section 5 of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Incremental Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds true and correct; and, once paid, shall not be refundable in whole or in part.
(cf) The the Administrative Agent shall have received a favorable written opinion of received:
(i) Bassa certificate of each Credit Party, dated the First Incremental Agreement Effective Date, substantially consistent with the certificates delivered on the Closing Date pursuant to Section 6.5 of the Credit Agreement or otherwise reasonably acceptable to the Administrative Agent;
(ii) a certificate of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party;
(iii) a written Notice of Borrowing in respect of the Tranche B Term Loans; and
(iv) a written notice of prepayment in respect of the Initial Term Loans; and
(v) a legal opinion of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ PLCLLP, counsel for Parent to Holdings, the Borrower and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organizationSubsidiaries, in each case of such Loan Party as in effect on the Effective Date form and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestAgent.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This The modifications to the Credit Agreement as set forth in Section 3 above shall become effective immediately on and as of the date on which hereof upon the Lenders’ party hereto and the Agent’s satisfaction with each of the following conditions precedent is satisfied (the date of such datesatisfaction, the “Effective Date”):
(a) 4.1 The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have each received a favorable written opinion of the following, each in form and substance satisfactory to the Agent and the Lenders party hereto:
(i) BassThe counterparts to this Agreement, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and which shall be duly executed by the Borrower, substantially each Guarantor, the Lenders sufficient to constitute the effect set forth on Exhibit B-1 Requisite Lenders and the Agent, in each case, in accordance with Section 13 below;
(ii) The First Amendment and Waiver to Senior Secured Convertible Note Purchase and Guarantee Agreement and Other Note Documents, which shall be duly executed by the general counsel of Parent, substantially parties thereto;
(iii) Evidence that all conditions precedent to the effect set forth in Exhibit B-2.First Amendment and Waiver to Senior Secured Convertible Note Purchase and Guarantee Agreement and Other Note Documents have been satisfied;
(div) The Administrative Agent shall have received (ia) a certificate as to the good standing of From each Loan Party Party, an Officer’s Certificate dated as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true are (i) true, correct and complete copy copies of (1) the by-laws or operating (or equivalent thereoflimited liability company) agreement of such Loan Party as in effect on the Effective Date, or a certification that there has been no change to the same since delivered to the Agent on August 13, 2021, (ii) true, correct and (2) complete copies of the certificate or articles of incorporationincorporation or organization (or other charter document), certified including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the applicable state of organizationits organization (or equivalent), in or a certification that there has been no change to the same since delivered to the Agent on August 13, 2021, (iii) where applicable, a certificate as to the good standing or status (or similar equivalent) of each case of such Loan Party as in effect on of a recent date, from such Secretary of State or similar Governmental Authority from such Loan Party’s applicable jurisdiction of organization (which, for the Effective Date and at all times since avoidance of doubt, may be certified via a date prior to the date of the resolutions described in clause (B) below, (or, if such byshort-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurredform document), (Biv) the names of the authorized officers authorized to sign the Loan Documents and their true signatures and (v) that attached thereto is a true true, correct and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent thereofgoverning body) of such Loan Party authorizing the execution, delivery and performance of this Agreement, the performance of the Loan Documents to which such person is a partyas modified by this Agreement, and the transactions contemplated hereby and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, or a certification that there has been no change since the authorizing resolutions delivered to the Agent on August 13, 2021, and that such resolutions authorize the execution, delivery and performance of this Agreement, the performance of the Loan Documents as modified by this Agreement, and the transactions contemplated hereby, (b) a solvency certificate of Holdings, the Borrower and each Domestic Guarantor and (Cc) a closing certificate of the Borrower in form and substance reasonably satisfactory to the Agent certifying (i) as to the incumbency matters set forth in Section 5 below and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated that all conditions precedent to the Effective Date have been satisfied; and
(v) Evidence in form and signed by a Financial Officer substance reasonably satisfactory to the Agent that substantially contemporaneously with the effectiveness of this Agreement that all fees and expenses of the Borrower, confirming compliance with Agent and the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of other Secured Parties required to be paid or reimbursed by the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable Loan Parties on or prior to the Effective DateDate (including, including upfront without limitation, all fees (which may be in the form and expenses of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, Sidley Austin LLP and any and all local counsels to the extent invoiced, reimbursement Agent and the Lenders required or payment of all out-of-pocket expenses required otherwise contemplated to be paid or reimbursed or paid by under Section 13.02 of the Borrower hereunder or under any other Loan Document.
(gCredit Agreement) The Security Documents shall be in full force and effect on for which invoices have been presented prior to the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify case have been paid or reimbursed to the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingappropriate parties.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become be effective on and as of the date on which each of that the following conditions precedent is shall have been satisfied (such date, the “Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrowerfollowing, each Subsidiary Guarantor, each Incremental 2018 Term F Lender dated the Amendment Effective Date and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans in form and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered substance satisfactory to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of and the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Lenders:
(c) The Administrative Agent shall have received a favorable written opinion of (i) Basscounterparts of this Amendment, executed by the Lenders and the Borrower;
(ii) such certificates of resolutions or other action and incumbency, executed by a secretary or assistant secretary of the Borrower as the Administrative Agent may require, evidencing the identity, authority and capacity of the Responsible Officer authorized to execute this Amendment;
(iii) an opinion of ▇▇▇▇▇ & ▇▇▇▇ PLC▇▇▇▇, counsel for Parent and to the Borrower, covering substantially the same matters as the legal opinion delivered by such counsel on the First Amendment Date pursuant to Section 4.01(a) of the Credit Agreement, but only such matters that are relevant to the effect set forth on Exhibit B-1 Amendment addressed to the Administrative Agent and the Lenders;
(iv) a certificate of a Responsible Officer of the Borrower either (A) (i) attaching copies of all consents, licenses and approvals required to be obtained by the Borrower (I) in connection with the execution and delivery of this Amendment, (II) as a condition to borrowing by the Borrower under the Credit Agreement, and/or (III) the validity of the Credit Agreement, and (ii) stating that such consents, licenses and approvals are in full force and effect, or (B) stating that no such consents, licenses or approvals are required; and
(v) a certificate signed by a Responsible Officer of the general counsel Borrower certifying that on the Amendment Effective Date, after giving effect to this Amendment, (A) no Default exists, (B) the representations and warranties of Parentthe Borrower contained in Article V of the Credit Agreement are true and correct, substantially except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date, (C) there has been no event or circumstance since December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect set forth in Exhibit B-2upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole, (2) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document to which it is a party, or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document.
(db) The Fees and expenses that are required to be paid by the Borrower on or before the Amendment Effective Date shall have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Amendment shall be deemed to be satisfied with each document or other matter required hereunder to be satisfactory to such Lender unless the Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, notice from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since a date Lender prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement proposed Amendment Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestspecifying its objection thereto.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Oneok Inc /New/)
Effectiveness. This Agreement Amendment shall become effective on and as of the first date on which when each of the following conditions precedent is satisfied are met (such date, the “Amendment No. 3 Effective Date”):
(a) The Administrative the Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, from the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Consenting Lender and the Required Lenders Non-Extending Lender (determined immediately after giving effect as defined below) a counterpart hereof signed by such party or facsimile or other written confirmation (in form satisfactory to the incurrence of Agent) that such party has signed a counterpart hereof; provided that notwithstanding the Incremental 2018 Term F Loans and foregoing, the use of proceeds thereof).
(b) The Administrative amendments set forth in Exhibit A shall not be effective on the Amendment No. 3 Effective Date unless the Agent shall have received payment from each Consenting Lender and the Borrower, Non-Extending Lender a counterpart hereof signed by such party or facsimile or other written confirmation (in form satisfactory to the Agent) that such party has signed a counterpart hereof; (b) the Agent shall have received a duly executed revised Note for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered requesting delivery of such Note pursuant to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% Section 2.05 of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
Amended Credit Agreement; (c) The Administrative the Agent shall have received satisfactory opinions of counsel for the Borrower, dated the Amendment No. 3 Effective Date; (d) the Agent shall have received a favorable written opinion certificate dated the Amendment No. 3 Effective Date signed on behalf of the Borrower by any Responsible Officer of the Borrower stating that (iA) Basson the Amendment No. 3 Effective Date, ▇▇▇▇▇ & ▇▇▇▇ PLCbefore and after giving effect to this Amendment, counsel for Parent no Default shall have occurred and be continuing, (B) the Borrowerrepresentations and warranties contained in the Amended Credit Agreement are true and correct on and as of the Amendment No. 3 Effective Date, substantially except to the effect set forth on Exhibit B-1 extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date and (iiC) any authorization, consent or approval of any Governmental Authority required to be obtained by the Borrower to authorize the transactions contemplated by this Amendment shall have been obtained and remain in full force and effect, except as provided in accordance with Section 3(f) below; (e) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate of the Secretary of the Commonwealth of the jurisdiction of incorporation, dated as of a recent date, as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; Borrower and (ii) a certificate of the Secretary or an Assistant Secretary of each Loan Party the Borrower dated the Amendment No. 3 Effective Date and certifying (A) that attached thereto is a true are true, correct and complete copy copies of (1x) the by-laws (or equivalent thereof) and (2) the certificate or Borrower’s articles of incorporation, incorporation certified as of a recent date by the Secretary of State the Commonwealth in the jurisdiction of incorporation of the applicable state of organization, in each case of such Loan Party as in effect on Borrower and (y) the Effective Date and at all times since a date prior to the date bylaws of the resolutions described in clause Borrower, (B) belowas to the absence of dissolution or liquidation proceedings by or against the Borrower, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (BC) that attached thereto is a true true, correct and complete copy of resolutions duly adopted by the Board board of Directors (or equivalent thereof) directors of such Loan Party the Borrower authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, this Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of and that such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.resolutions
Appears in 1 contract
Sources: Revolving Credit Agreement (Louisville Gas & Electric Co /Ky/)
Effectiveness. This Agreement shall not become effective on and the Lenders shall not be required to make any Borrowing hereunder unless (a) the Borrower shall, prior to or concurrently with any such Borrowing, have paid all fees due and payable to the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall have furnished to the Administrative Agent, with sufficient copies for the Lenders, the following (the term “Borrower” being deemed to include any Qualified Borrower as of the date on which each Closing Date) (and in the case of the following conditions precedent is satisfied (such date, the “Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect any document to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably be delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonAgent, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees document shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.reasonably satisfactory to the Administrative Agent):
(c) The Administrative Agent shall have received a favorable written opinion of (i) BassThe duly executed originals of the Loan Documents, ▇▇▇▇▇ & ▇▇▇▇ PLCincluding the Notes, counsel for Parent payable to each of the Lenders, this Agreement, and the BorrowerQualified Borrower Guaranty (which, substantially subject to the effect set forth on Exhibit B-1 and Article XIV, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) the general counsel A Certificate of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, for the Borrower from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date appropriate governmental officer and at all times since a date dated not more than thirty (30) days prior to the date Closing Date;
(iii) Copies of the resolutions described in clause formation documents (B) below, (orincluding code of regulations, if such by-laws appropriate) of the Borrower certified by an Authorized Officer of the Borrower, together with all amendments thereto;
(or equivalent thereofiv) or Incumbency certificates, executed by Authorized Officers of the Borrower, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents and to make borrowings hereunder on behalf of the Borrower, upon which certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on and the Closing DateLenders shall be entitled to rely until informed of any change in writing by the Borrower;
(v) Copies, certified by a Secretary or an Assistant Secretary of the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy Borrower of resolutions duly adopted by the Board of Directors Directors’ resolutions (or equivalent thereofand resolutions of other bodies, if any are reasonably deemed necessary by counsel for any Lender) of such Loan Party authorizing the Borrowings provided for herein, with respect to the Borrower, and the execution, delivery and performance of the Loan Documents to which such person is a partybe executed and delivered by the Borrower;
(vi) A written opinion of the Borrower’s counsel, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as addressed to the incumbency Lenders in form and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents substance as the Administrative Agent may reasonably request.approve;
(evii) The Administrative Agent shall have received a A certificate, dated the Effective Date and signed by a Financial an Authorized Officer of the Borrower, confirming compliance with stating that on the conditions precedent set forth in paragraphs (b) Closing Date no Default or Unmatured Default has occurred and (c) of Section 4.01 is continuing and that all representations and warranties of the Credit Agreement.Borrower are true and correct in all material respects as of the Closing Date; provided that any representation or warranty that is qualified as to “materiality”, Material Adverse Effect or similar language shall be true and correct in all respects on the Closing Date and any such representation or warranty that is stated to relate solely to an earlier date shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of such earlier date;
(fviii) The financial statements of the Borrower for the fiscal year ended on December 31, 2021 and fiscal quarter ended March 31, 2022;
(ix) UCC financing statement, judgment, and tax lien searches with respect to the Borrower from its State of organization;
(x) A borrower administrative questionnaire in the form provided by the Administrative Agent, addressed to the Administrative Agent shall and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have received reasonably requested;
(xi) A pro-forma compliance certificate in substantially the form of Exhibit C as of the fiscal quarter ended March 31, 2022, executed by the Borrower’s chief financial officer or chief accounting officer prepared on the assumption that the other Indebtedness of Borrower being repaid by the initial Borrowing hereunder was replaced by Borrowings hereunder for the period covered by such certificate and after giving effect to the transactions contemplated by this Agreement;
(xii) Evidence that the loan commitments of any lenders under the Prior Agreement which are not Lenders under this Agreement have been properly terminated and all Fees and other amounts due and payable on to such lenders have been paid, or will be paid out of the proceeds of the initial Borrowing hereunder;
(xiii) Evidence that all upfront fees due to each of the Lenders under the terms of their respective commitment letters have been paid, or will be paid out of the proceeds of the initial Borrowing hereunder;
(xiv) (i) At least three (3) Business Days prior to the Effective Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andPatriot Act, to the extent invoicedrequested in writing of the Borrower at least ten (10) days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, reimbursement or payment at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of all outits signature page to this Agreement, the condition set forth in this sub-of-pocket expenses required clause (ii) shall be deemed to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.satisfied);
(gxv) The Security Documents shall An executed amendment to, or amendment and restatement of, the approximately $100,000,000 (to be in full force increased to $200,000,000) Second Amended and effect on the Effective DateRestated Term Loan Agreement dated as of July 26, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify 2019, as amended, among the Borrower, the Incremental 2018 Term F Lenders ▇▇▇▇▇ Fargo Bank, National Association and the other Lenders under lenders party thereto, in order to revise the Credit financial covenants and certain other provisions set forth therein to be consistent with this Agreement and to modify certain other terms thereof, in form and substance reasonably satisfactory to the Administrative Agent; and
(xvi) Such other documents as any Lender or its counsel may have reasonably requested, the form and substance of the Effective Date and such notice which documents shall be conclusive reasonably acceptable to the parties and bindingtheir respective counsel.
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Effectiveness. This Agreement Amendment shall become effective and the Credit Agreement shall be amended as provided for herein, upon the satisfaction on and as of or prior to the date on which each Effective Date of the following conditions precedent is satisfied (such date, the “Effective Date”):conditions:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) shall have received counterparts hereof duly executed and delivered by a duly authorized officer of each of the Current Borrowers and Core Laboratories Interests Holdings and by the Lenders whose consent is required to effect the amendments contemplated hereby;
(b) The Parent shall have paid all fees, charges, and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and related documents to the extent then invoiced;
(c) the Administrative Agent (or its counsel) shall have received each of the items listed on the Closing Documents List attached hereto as Annex A, each in form and substance reasonably acceptable to the Administrative Agent and, where applicable, duly executed signature page to and delivered by a duly authorized officer of each applicable Loan Party;
(d) the Administrative Agent shall have received, or shall concurrently receive (i) for the account of each Lender executing this Amendment by 5 p.m. (Central) on September 28, 2011, an amendment fee of $10,000, and (ii) for the account of the applicable Person, payment of all other fees payable in connection with this Amendment; provided that Section 3 of this Amendment shall only become effective, and the Credit Agreement at shall only be amended as provided for therein, upon the satisfaction on or prior to 12:00 noon5 p.m. (Central) on September 28, New York City time2011, on March 5of the additional conditions that (i) the Administrative Agent shall have received counterparts hereof duly executed and delivered by all of the Lenders and (ii) the Administrative Agent shall have received, 2015 (eachor shall concurrently receive, a “Consenting for the account of each Lender”), an additional amendment fee in an amount equal to 0.05% of (y) 10 basis points on the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable 's Commitment then in immediately available funds and, once paid, shall not be refundable in whole or in part.
effect minus (c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (iiz) the general counsel amendment fee of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate $10,000 paid pursuant to clause (iid)(i) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
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Effectiveness. This Agreement (a) The amendments under Section 1.2 (collectively, the “Refinancing Facility Amendments”) shall become effective on and as of the date (the “2017 Refinancing Amendment Effective Date”) and at the time (the “Refinancing Facility Amendments Effective Time”) on and at which each of the following conditions precedent is satisfied (such date, or waived:
i. the “Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts a counterpart of this Agreement that, when taken together, bear the signatures of Parent, Amendment (A) executed by (I) the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and (II) the Required Lenders and (determined immediately after giving effect III) the Refinancing Tranche A Term Lenders and (B) acknowledged and agreed by each of the Guarantors;
ii. the Administrative Agent shall have received such closing certificates or certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment;
iii. the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed;
iv. the Administrative Agent shall have received an executed legal opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the incurrence Borrower, addressed to the Administrative Agent, each Refinancing Tranche A Term Lender and each other Lender party to this Amendment, dated the 2017 Refinancing Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent;
v. the representations and warranties of each Loan Party contained in Article V (other than Section 5.05(b)) of the Incremental 2018 Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the 2017 Refinancing Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct as of such earlier date); provided that, to the extent that such representations and warranties are qualified by materiality, material adverse effect or similar language, they shall be true and correct in all respects; and
vi. no Default or Event of Default exists or would result from the effectiveness of this Amendment or from the application of the proceeds of the Refinancing Tranche A Term F Loans and the use of proceeds thereof)Loans.
(b) The Guarantor Release shall become effective on the date (the “2017 Guarantor Release Effective Date”) and at the time (the “Guarantor Release Effective Time”) at which each of the following conditions is satisfied:
i. the Refinancing Facility Amendments Effective Time shall have occurred;
ii. the Administrative Agent shall have received payment from a counterpart of this Amendment executed by all Revolving Credit Lenders; and
iii. the Borrower, for the account of each 2021 Term D Lender that Prepayment shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partoccurred.
(c) The Administrative Agent Credit Agreement Amendment shall become effective on the date (the “2017 Credit Agreement Amendment Effective Date”) and at the time (the “Credit Agreement Amendment Effective Time”) on and at which the Guarantor Release Effective Time shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) occurred. The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as delivery of a recent date, from the Secretary counterpart of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date this Amendment executed by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted each Lender party to this Amendment shall conclusively be deemed to constitute an acknowledgement by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer each Lender party to this Amendment that each of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs this Section 1.6(a), (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent ), as applicable, shall have received all Fees and other amounts due and payable on been satisfied in accordance with its terms or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Documentbeen irrevocably waived by such Person. The Administrative Agent shall notify the BorrowerBorrower and the Lenders in writing of each of the 2017 Refinancing Amendment Effective Date, the Incremental 2018 Term F Lenders 2017 Guarantor Release Effective Date and the other Lenders under the 2017 Credit Agreement of Amendment Effective Date, as applicable, promptly upon the Effective Date respective conditions precedent in this Section 1.6 being satisfied (or waived in accordance with this Section 1.6), and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which (such date and time of effectiveness, the “Amendment No. 1 Effective Date”) that each of the following conditions precedent is satisfied (such date, the “Effective Date”):set forth below shall have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts hereof from each of this Agreement thatthe Loan Parties, when taken together, bear Lenders constituting the signatures of Parent, the BorrowerRequired Lenders, each Subsidiary GuarantorLender listed on Schedule I hereto as having a Revolving B Commitment, a Term B-1 Commitment and/or a Term B-2 Commitment, as applicable, each Incremental 2018 Term F Issuing Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Swingline Lender;
(b) The On the Amendment No. 1 Effective Date, the Administrative Agent shall have received payment from the Borrowerlegal opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, for counsel to the account of each 2021 Term D Lender that Loan Parties, which opinion shall have unconditionally be in form and irrevocably delivered substance reasonably satisfactory to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Agent;
(c) The Administrative Agent shall have received a favorable written opinion completed Notices of (i) BassBorrowing for the Term A-4 Loans, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent the Term B-1 Loans and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Term B-2 Loans;
(d) The Administrative Agent shall have received (i) from a Responsible Officer of the Borrower a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date in form and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred)the Borrower and its Subsidiaries, (B) that attached thereto is on a true consolidated basis after giving effect to this Amendment and complete copy the payment of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery all fees and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered expenses in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.therewith, are Solvent;
(e) The Administrative Agent shall have received a certificate, dated from the Borrower upfront fees for the account of each Lender equal to the sum of (i) 0.03% of the amount of such Lender’s Revolving B Commitment on the Amendment No. 1 Effective Date and signed by plus (ii) 0.07% of its Converted Term A Loan on the Amendment No. 1 Effective Date resulting from the conversion of its Term A-2 Loan to a Financial Officer Term A-4 Loan in connection with Amendment No. 1 plus (iii) 0.03% of its Converted Term A Loan on the BorrowerAmendment No. 1 Effective Date resulting from the conversion of its Term A-3 Loan to a Term A-4 Loan in connection with Amendment No. 1 plus (iv) 0.25% of such Lender’s Term B-2 Commitment and, confirming compliance with to the conditions precedent set forth extent converted into a Term B-2 Loan, its Converted Term B Loan, in paragraphs (b) and (c) of Section 4.01 of each case, on the Credit Agreement.Amendment No. 1 Effective Date;
(f) The Borrower shall have paid, or concurrently herewith shall pay to the Administrative Agent for the benefit of the applicable Lenders all accrued (i) commitment fees pursuant to Section 2.6(a) of the Credit Agrement, (ii) Letter of Credit fees pursuant to the first sentence of Section 3.3(a) of the Credit Agreement and (iii) all accrued interest on the Revolving Loans, Term A-2 Loans, Term A-3 Loans and Term B Loans, in each case, to but excluding the Amendment No. 1 Effective Date; and
(g) The Borrower shall have received all Fees and other amounts due and payable on paid, or prior concurrently herewith shall pay to the Effective Date, including upfront fees (which may be in Administrative Agent for the form benefit of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andapplicable Agents, to the extent invoiced, reimbursement or payment of all the reasonable documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentof such Agents in connection with this Agreement.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective on and as of when the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered the following:
(a) counterparts of this Agreement that, when taken together, bear Amendment executed by the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Company and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).Lenders;
(b) The evidence that the Company has paid all accrued and invoiced fees and expenses of the Administrative Agent shall have received payment from and the Borrower, Arranger (including reasonable attorneys' fees);
(c) an amendment fee for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered delivers to the Administrative Agent (or its counseli) its an executed consent to this Amendment (substantially in the form posted to Intralinks by the Administrative Agent on October 29, 2004) no later than 5:00 p.m. (Chicago time) on November 3, 2004; and (ii) an executed signature page to this Agreement at or prior Amendment no later than 5:00 p.m. (Chicago time) on November 9, 2004, such fee to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee be in an amount equal to 0.050.10% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of 's Commitment on the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.date this Amendment becomes effective;
(cd) The Administrative Agent shall have received a favorable written Confirmation substantially in the form of Exhibit A;
(e) the Security Agreement executed by the Company and each Guarantor;
(f) an executed Mortgage with respect to the properties owned or leased by the Company or a Guarantor located in Maricopa County, Arizona, Clay County, Missouri, Richland County, South Carolina (excluding an undeveloped tract of approximately two acres that the Company anticipates will be sold within six months) and Kenosha County, Wisconsin;
(g) Uniform Commercial Code financing statements (or amendments to existing Uniform Commercial Code financing statements) covering the collateral granted under the Security Agreement, together with documents sufficient to terminate existing Liens on such collateral to the extent that such Liens are not permitted by the Credit Agreement;
(h) an opinion of (i) Bass, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLC▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for Parent to the Company and the BorrowerGuarantors, substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Administrative Agent;
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof evidence satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents existence of insurance required to which such person is be maintained pursuant to the Credit Agreement and the Security Agreement, together with evidence that the Administrative Agent has been named as a party, lender's loss payee and that such resolutions the Administrative Agent and the Lenders have not been modified, rescinded or amended and are in full force and effect and named as additional insureds on all related insurance policies; and
(C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivj) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective effective, and this Amendment thereafter shall be binding on each of the parties hereto and their respective successors and assigns, as of the date on which Sixth Amendment Closing Date, upon the execution and delivery to the Administrative Agent and each Funding Agent of the following conditions precedent is satisfied (such date, the “Effective Date”):following:
(a) The Administrative Agent shall have received duly executed and delivered counterparts Counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, Amendment executed by each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).parties hereto;
(b) The An executed copy of an Amended and Restated Performance Guaranty, confirming continuing applicability of the Performance Guaranty in connection with the execution of this Amendment, including the addition of the Barclays Owners (as defined in the RPAA, as amended hereby) as parties to the RPAA and the extension of the Scheduled Expiry Date as effected hereby;
(c) An executed copy of the Transaction Fee Letter (as amended and restated as of the Sixth Amendment Closing Date), together with payment to the Person(s) entitled thereto of any and all fees referred to therein as payable on the Sixth Amendment Closing Date;
(d) An Opinion of Counsel of ▇▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the Sixth Amendment Closing Date, covering the matters described in and substantially consistent with the substance of such opinions as described in Section 4.1(k) and 4.1(l) of the Existing RPAA, in form and substance reasonably satisfactory to the Administrative Agent, each Funding Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered counsel to the Administrative Agent and the Funding Agents;
(or its counsele) its executed signature page A reliance letter from ▇▇▇▇▇ ▇▇▇▇▇ LLP, addressed to this Agreement at or prior to 12:00 noonBarclays, New York City timeauthorizing reliance by Barclays on the Opinions of Counsel of ▇▇▇▇▇ ▇▇▇▇▇ LLP, on March 5dated as of February 14, 2015 2020 (each, a “Consenting Lender”covering the matters described in Section 4.1(k) and 4.1(l) of the Existing RPAA), an amendment fee in an amount equal form and substance reasonably satisfactory to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Barclays;
(cf) The Administrative Agent shall have received a favorable written opinion of (i) BassSecretary’s certificates with respect to the Transferor, ▇▇▇▇▇ & and each Guarantor;
(g) Good standing certificates of each of ▇▇▇▇ PLC▇▇, counsel for Parent the Transferor and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, Guarantor from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date and at all times since Delaware dated a date prior to reasonably near the date of the resolutions described in clause Sixth Amendment Closing Date;
(Bh) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof Evidence satisfactory to the Administrative Agent on that the Closing DateTransferor is in compliance with the Hedging Requirements as required by Section 3.6(n)(v) of the RPAA; and
(i) Resolutions of the member, the First Restatement Effective Date, the Second Restatement Effective Date manager or the Third Restatement Effective Dateboard of directors, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered of ▇▇▇▇▇, the Transferor and each Guarantor in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) execution of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders this Amendment and the other Lenders under the Credit Agreement of the Effective Date applicable Related Documents and such notice shall be conclusive and bindingother deliverables being executed in connection with this Amendment.
Appears in 1 contract
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Effectiveness. This Agreement Amendment shall become be effective on and as of the date on which each of when the following conditions precedent is have been satisfied (such date, or waived) (the “Amendment Effective Date”):
(a) 1. The Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) the Loan Parties, (ii) the BorrowerAdministrative Agent, each Subsidiary Guarantor, each Incremental 2018 Term F Lender (iii) the Lenders and (iv) the Required Lenders (determined immediately after giving effect New Revolving Lenders.
2. Each of the representations and warranties made by any Loan Party in or pursuant to the incurrence Loan Documents shall be true and correct in all material respects on and as of the Incremental 2018 Term F Loans Amendment Effective Date as if made on and as of such date (except to the use extent already qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of proceeds thereofsuch earlier date (except to the extent already qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects).
(b) The Administrative Agent 3. No Default shall have received payment exist, or would result from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partAmendment.
(c) 4. The Administrative Agent shall have received a favorable written opinion certificate from a Responsible Officer of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to Borrower certifying that the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect conditions set forth in Exhibit B-2Sections 2.2 and 2.3 have been satisfied and that none of the Organizational Documents of the Loan Parties previously delivered to the Administrative Agent on the Effective Date have been amended, modified, repealed, revoked or rescinded since the Effective Date, and each remains in full force and effect as of the date hereof.
(d) 5. The Administrative Agent shall have received (i) a certificate as to the certificates of good standing from the secretary of state of the state of organization of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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 extent such concept exists in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurredjurisdiction), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) 6. The Administrative Agent shall have received a certificatecustomary legal opinion from Winston & ▇▇▇▇▇▇ LLP, dated counsel to the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit AgreementLoan Parties.
(f) 7. The Administrative Agent shall have received all Fees and other amounts due and payable on or prior a solvency certificate from a Financial Officer of the Borrower (after giving effect to the Effective Date, including upfront fees (which may be this Amendment) substantially in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect previously delivered on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
8. The Administrative Agent shall notify have received at least three (3) Business Days prior to the Borrower, Amendment Effective Date all documentation and other information in respect of the Incremental 2018 Term F Lenders Borrower and the other Lenders Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the Credit Agreement of the Effective Date and such notice shall be conclusive and bindingUSA PATRIOT Act, that has been reasonably requested in writing by it.
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness. This Section 6.01. The following are specified as additional conditions to the effectiveness of this Loan Agreement shall become effective on and as for the purposes of Section 9.01(f) of the date on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):Loan Regulations:
(a) The Administrative Agent the JBIC Loan Agreement shall have received been duly executed and delivered, and all conditions precedent to its effectiveness (other than a condition requiring the effectiveness of this Loan Agreement) shall have been fulfilled or arrangements satisfactory to ADB shall have been made for the fulfillment thereof within a period of time satisfactory to ADB;
(b) the Subsidiary Loan Agreement, in form and substance satisfactory to ADB, shall have been duly executed and delivered counterparts on behalf of the Borrower and EDC and shall have become fully effective and binding upon the parties thereto in accordance with its terms, subject only to the effectiveness of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Loan Agreement;
(c) The Administrative Agent the Borrower shall have received a favorable written opinion of submitted to the National Assembly the draft Budget Law for 2007 and which Budget proposes an additional budget allocation for MEF in order to enable MEF to offset: (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party all past due input VAT as of a recent date31 December 2006, from in the Secretary amount of State approximately KR 43.5 billion as of its state of organization31 December 2005 and an estimated amount for fiscal year 2006, against the total amount owed by EDC as levied by CD; (ii) a certificate all past due input VAT as of 31 December 2006, in the amount of approximately KR 19.7 billion as of 31 December 2005 and an estimated amount for fiscal year 2006, against EDC’s liability on interest and principal payments due the Borrower under subsidiary loans to EDC using funds provided by ADB and the World Bank and as levied by TD; and (iii) the arrears, as of 31 December 2005, of the Secretary or Assistant Secretary of each Loan Party dated accounts receivable by EDC from the Effective Date Borrower’s institutions, agencies and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationlocal authorities, certified in an amount recorded by EDC at approximately KR 22 billion as of a recent date by 31 December 2005.
Section 6.02. The following is specified as an additional matter, for the Secretary purposes of State Section 9.02(d) of the applicable state Loan Regulations, to be included in the opinion or opinions to be furnished to ADB: that the Subsidiary Loan Agreement has been duly authorized by or ratified by, and executed and delivered on behalf of, the Borrower and EDC, and is legally binding upon the Borrower and EDC in accordance with its terms, subject only to the effectiveness of organization, in each case of such this Loan Party as in effect on the Effective Date and at all times since a Agreement.
Section 6.03. A date prior to ninety (90) days after the date of this Loan Agreement is specified for the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance effectiveness of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to Agreement for the incumbency and specimen signature purposes of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature Section 9.04 of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestLoan Regulations.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Loan Agreement
Effectiveness. This Agreement (a) The amendments set forth in Section 2 of this Amendment shall become effective on and as of the date on which each set forth above (the “Amendment Effective Date”) upon the satisfaction of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(ai) The the Administrative Agent shall have received this Amendment executed and delivered by the Administrative Agent, the Canadian Administrative Agent, the Parent, the Company, each of the other Borrowers, each Issuing Bank, each Swingline Lender and the Lenders party to the Credit Agreement constituting the “Majority Lenders” thereunder; and
(ii) the Administrative Agent shall have received a reaffirmation agreement, in form and substance reasonably satisfactory to the Administrative Agent, with respect to the Company Guaranty, the Parent Guaranty, the Subsidiary Guaranty, the Company Pledge Agreement, the Parent Pledge Agreement and the Subsidiary Pledge Agreement, duly executed and delivered counterparts of this Agreement that, when taken together, bear by the signatures of Parent, the BorrowerCompany, each Subsidiary Guarantor, each Incremental 2018 Term F Lender Guarantor and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Administrative Agent, as applicable.
(b) The Refinancing Facilities and the provisions of Section 3 of this Amendment shall become effective as of the Amendment Effective Date upon the satisfaction of the conditions set forth in Section 5(a) of this Amendment and the following conditions precedent:
(i) no Event of Default shall have occurred and be continuing on such date;
(ii) on such date, the representations and warranties of each of the Parent and the Company set forth in the Basic Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date;
(iii) substantially concurrently with the effectiveness of Refinancing Revolving Commitments, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, including any amounts as may be required pursuant to Section 6.05 of the Credit Agreement, shall be repaid or paid (it being understood, however, that any Letters of Credit shall continue to be outstanding hereunder);
(iv) substantially concurrently with the effectiveness of the Refinancing Term Loan A Commitments, the Company shall obtain Refinancing Term Loan A Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan A Commitments, together with any amounts as may be required pursuant to Section 6.05 of the Credit Agreement (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing);
(v) the Administrative Agent shall have received evidence of payment from by the Borrower, for Company of such fees as the account of each 2021 Term D Lender that Company shall have unconditionally and irrevocably delivered agreed to pay or deliver to any Refinancing Lender or the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noonin connection herewith, New York City timeincluding, on March 5without limitation, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% the reasonable fees and expenses of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, special New York counsel for Parent to the Administrative Agent, in connection with the negotiation, preparation, execution and delivery of this Amendment and the Borrower, substantially other Basic Documents and the extensions of credit hereunder (to the effect set forth on Exhibit B-1 extent that statements for such fees and expenses have been delivered to the Company);
(iivi) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate certified copies of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date charter and certifying (A) that attached thereto is a true and complete copy of (1) the by-by laws (or equivalent thereofdocuments) of the Company and (2ii) certified copies of all corporate authority of the certificate or articles Company (including, without limitation, board of incorporationdirector resolutions and evidence of the incumbency, certified as including specimen signatures, of a recent date officers) with respect to the execution and delivery of this Amendment and performance by the Secretary Company of State its obligations under the Basic Documents to which it is a party and each other document to be delivered by the Company from time to time in connection herewith and the extensions of the applicable state of organization, in each case of such Loan Party as in effect on the Effective Date credit hereunder (and at all times since a date prior to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent and each Lender may conclusively rely on such certificate until it receives notice in writing from the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as Company to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Partycontrary); (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.and
(evii) The the Administrative Agent shall have received a certificatean opinion, in form and substance reasonably satisfactory to the Administrative Agent, dated as of such date, of ▇▇▇▇▇▇▇▇ & Worcester LLP, special New York counsel to the Effective Date and signed by a Financial Officer of the BorrowerObligors, confirming compliance with the conditions precedent respect to matters set forth in paragraphs (b) 1, 2, 3, 4, 5, 7, 9 and (c) 10 of Section 4.01 Exhibit I-1 of the Credit Agreement as they relate to the Credit Agreement.
(f) The , this Amendment and the borrowings hereunder and any other matters as the Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which any Lender may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentreasonably request.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which (such date and time of effectiveness, the “Amendment No. 6 Effective Date”) that each of the following conditions precedent is satisfied (such date, the “Effective Date”):set forth below shall have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, hereof from the Borrower, each Subsidiary GuarantorHoldings, the Issuing Lenders, the Swingline Lender, Lenders constituting the Required Lenders, each Incremental 2018 Lender listed on Schedule I hereto as having a Revolving C Commitment, a Term F A-7 Additional Commitment and/or Term B-5 Additional Commitment, each Converting Consenting Term B-2 Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 each Converting Consenting Term F Loans and the use of proceeds thereof).A-5 Lender ;
(b) The On the Amendment No. 6 Effective Date, the Administrative Agent shall have received payment from the Borrowerlegal opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, for counsel to the account of each 2021 Term D Lender that Loan Parties, which opinion shall have unconditionally be in form and irrevocably delivered substance reasonably satisfactory to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Agent;
(c) The Administrative Agent shall have received a favorable written opinion completed Notices of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel Borrowing for Parent the Term A-7 Loans and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.Term B-5 Loans;
(d) The Administrative Agent shall have received (i) from a Responsible Officer of the Borrower a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date in form and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred)the Borrower and its Subsidiaries, (B) that attached thereto is on a true consolidated basis after giving effect to this Amendment and complete copy the payment of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery all fees and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered expenses in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.therewith, are Solvent;
(e) The Administrative Agent shall have received from the Borrower upfront fees for the account of each Lender equal to: (i) in the case of each Lender that is not a certificateRevolving Lender or a Term A-5 Lender immediately prior to the Amendment No. 6 Effective Date, dated the Effective Date and signed by a Financial Officer 0.20% of the Borrower, confirming compliance with sum of (A) the conditions precedent set forth in paragraphs (b) aggregate principal amount of the Revolving C Commitment of such Revolving Lender actually made available to the Borrower and (cB) the aggregate principal amount of Section 4.01 Term A-7 Loans funded by such Lender, in each case, on the Amendment No. 6 Effective Date, (ii) in the case of each Lender that is a Revolving Lender and/or a Term A-5 Lender immediately prior to the Amendment No. 6 Effective Date, the sum of (A) 0.08% of the Credit Agreement.sum of (x) the aggregate principal amount of the Revolving C Commitment of such Lender actually made available to the Borrower and (y) the aggregate principal amount of Term A-7 Loans funded (including through the conversion of any Converted Term A-5 Loans) by such Lender, in each case, on the Amendment No. 6 Effective Date, in an aggregate principal amount up to the sum of (1) such L▇▇▇▇▇’s Revolving B Commitment and (2) such L▇▇▇▇▇’s Term A-5 Loans, in each case, in effect immediately prior to the Amendment No. 6 Effective Date, and (B) 0.20% of the amount, if any, by which the sum of (x) the aggregate principal amount of the Revolving C Commitment of such Lender actually made available to the Borrower and (y) the aggregate principal amount of Term A-7 Loans funded (including through the conversion of any Converted Term A-5 Loans) by such Lender, in each case, on the Amendment No. 6 Effective Date, exceeds the sum of (1) such L▇▇▇▇▇’s Revolving B Commitment and (2) such Lender’s Term A-5 Loans, in each case, in effect immediately prior to the Amendment No. 6 Effective Date, and (iii) 0.25% of the aggregate principal amount of Term B-5 Loans funded (including through the conversion of any Converted Term B-2 Loans) by such Lender on the Amendment No. 6 Effective Date;
(f) The Prior to, or substantially concurrently with, the Amendment No. 6 Effective Date, the Amendment No. 6 Term A-5 Loan Prepayment and the Amendment No. 6 Term B-2 Loan Prepayment shall have occurred;
(g) Substantially concurrently with the Amendment No. 6 Effective Date, the Borrower shall have (x) paid, or concurrently herewith shall pay, to the Administrative Agent shall have received for the benefit of the applicable Lenders all Fees accrued (i) commitment fees pursuant to Section 2.6(a) of the Existing Credit Agreement and other amounts due (ii) Letter of Credit fees pursuant to the first sentence of Section 3.3(a) of the Existing Credit Agreement, in each case, to but excluding the Amendment No. 6 Effective Date, and payable on or (y) repaid all Revolving B Loans (if any) that are outstanding immediately prior to the Amendment No. 6 Effective Date, including upfront fees together with all accrued and unpaid interest thereon up to but excluding the Amendment No. 6 Effective Date; and
(which may be in h) The Borrower shall have paid, or concurrently herewith shall pay to the form Administrative Agent for the benefit of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andapplicable Agents, to the extent invoiced, reimbursement or payment of all the reasonable documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentof such Agents in connection with this Amendment.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Cco Holdings LLC)
Effectiveness. (a) This Restatement Agreement (other than this Section 6 and Sections 9, 10 and 11 hereof, which shall be effective as to each signatory hereto immediately upon the delivery of its signature page hereto) shall become effective on and as of the first date (the “Restatement Effective Date”) on which each of the following conditions precedent is shall have been satisfied (such datewhich, in the “Effective Date”case of clauses (vi), (vii) and (viii) below, may be concurrent with the satisfaction of the other conditions specified below):
(ai) The Administrative Agent shall have received (x) duly executed and delivered counterparts of this Agreement hereof that, when taken together, bear the signatures of Parentthe Borrowers, the BorrowerRequired Lenders, the Administrative Agent, the Swingline Lender, each Subsidiary Guarantor, Issuing Bank and each Incremental 2018 Extended/Term-Out Revolving Credit Lender (if any) and (y) duly executed counterparts hereof from Extended First-Lien B-1 Term F Lender Loan Lenders and Extended First-Lien B-2 Term Loan Lenders electing (in the signature pages hereto) to convert an aggregate principal amount of at least $2,500,000,000 of Existing Term Loans to Extended First-Lien Term Loans.
(ii) The conditions set forth in Section 4.01(b) and (c) of each of the Original Credit Agreement and the Required Lenders Restated Credit Agreement shall be satisfied on and as of the Restatement Effective Date immediately before (determined in the case of the Original Credit Agreement) and immediately after (in the case of the Restated Credit Agreement) giving effect to this Restatement Agreement (it being understood that solely for the incurrence purposes of this condition, the occurrence of the Incremental 2018 Term F Loans Restatement Effective Date shall be deemed a Credit Event), and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from a certificate of a Responsible Officer of the US Borrower, for dated the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Restatement Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in partto such effect.
(ciii) The Administrative Agent shall have received a favorable written legal opinion of (i) BassWeil, Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇ PLCLLP, special counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of ParentBorrowers, substantially addressed to the effect set forth Lenders, the Administrative Agent, the Swingline Lender and each Issuing Bank, dated the Restatement Effective Date, in Exhibit B-2form and substance reasonably satisfactory to the Administrative Agent.
(div) The Administrative Agent shall have received (ix) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary Chief Financial Officer of State the US Borrower certifying that, after giving effect to this Restatement Agreement, the B-1 Term Extension, the B-2 Term Extension, the Revolver Extension, the Revolver Term-Out, the Revolver L/C Extension and the issuance of and repayment of Indebtedness as contemplated by Section 6(b) below, the US Borrower and its state of organization; Subsidiaries (iion a consolidated basis) are Solvent, (y) a certificate of the Secretary or Assistant Secretary good standing with respect to each Borrower and (z) a closing certificate executed by a Responsible Officer of each Loan Party Borrower, dated the Restatement Effective Date Date, reasonably acceptable to the Administrative Agent, certifying as to the incumbency and certifying specimen signature of each officer executing this Restatement Agreement or any other document delivered in connection herewith on behalf of any Borrower and attaching (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationincorporation of each Borrower, including all amendments thereto, as in effect on the Restatement Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the applicable state jurisdiction of its organization, in that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (y) above, (B) a true and complete copy of the by-laws of each case of such Loan Party Borrower 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), and (BC) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such each Loan Party authorizing the execution, delivery and performance of this Restatement Agreement and the performance of the Restated Credit Agreement and the Loan Documents to which such person is a party, (as modified hereby) and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requesteffect.
(ev) Each Loan Party not a party hereto shall have entered into a reaffirmation agreement substantially in the form of Exhibit B hereto.
(vi) The Administrative Agent shall have received payment from the US Borrower, for the account of each Lender that executes and delivers a certificatecounterpart signature page to this Restatement Agreement at or prior to 12:00 Noon, dated New York City time, on October 18, 2010, a consent fee (the “Consent Fee”) in an amount equal to 0.05% of the sum of aggregate principal amount of the Term Loans and the Revolving Credit Commitment of such Lender (as same would be outstanding or in effect, as applicable, on the Restatement Effective Date and signed by a Financial Officer immediately after giving effect to the contemplated repayment of the BorrowerExisting Term Loans pursuant to Section 6(b) below), confirming compliance with the conditions precedent set forth which Consent Fee shall be payable in paragraphs (b) and (c) of Section 4.01 of the Credit Agreementimmediately available funds and, once paid, be non-refundable.
(fvii) The Administrative Agent US Borrower shall have received paid all Fees fees and other amounts due and payable on or prior to the Effective DateAdministrative Agent and the Lenders, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender andincluding, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses in connection with this Restatement Agreement and any other out-of pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by pursuant to the Borrower hereunder or under any other Loan DocumentOriginal Credit Agreement, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
(gviii) The Security Documents All outstanding Swingline Loans under, and as defined in, the Original Credit Agreement shall be have been repaid in full force and effect on all accrued but unpaid interest thereon accruing prior to the Restatement Effective Date shall have been paid in accordance with the terms of the Original Credit Agreement.
(i) On the Restatement Effective Date (immediately after the satisfaction of the conditions thereto set forth in Section 6(a)), the US Borrower shall have issued Credit Agreement Refinancing Indebtedness of the type described in clause (a) of the definition thereof appearing in the Restated Credit Agreement in an aggregate principal amount of not less than $750,000,000 and deposited with the Administrative Agent not less than $730,000,000 of Net Cash Proceeds therefrom for application to the repayment of Existing Term Loans as provided in immediately succeeding clause (ii), and (ii) within one Business Day following the Restatement Effective Date, not less than $730,000,000 of Net Cash Proceeds from the Indebtedness described in preceding clause (i) shall have been used to repay Lenders holding principal of outstanding Existing Term Loans on the Restatement Effective Date (determined immediately after giving effect to the B-1 Term Extension and immediately prior to giving effect to the Collateral Agent on behalf B-2 Term Extension) as provided in Section 2.13(d)(ii) of the Secured Parties shall have a security interest in Restated Credit Agreement (the Collateral of the type and priority described in each Security Document. “Repayment Condition”).
(c) The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrowers and the other Lenders under the Credit Agreement of the Restatement Effective Date and such notice shall be conclusive and binding.
(d) Notwithstanding the foregoing, (i) this Restatement Agreement shall not become effective if each of the conditions set forth or referred to in Sections 6(a) and (b)(i) has not been satisfied at or prior to 11:59 p.m., New York City time, on October 26, 2010 (it being understood that any such failure of the Restatement Effective Date to occur will not affect any rights or obligations of any Person under the Original Credit Agreement) and (ii) the Restatement Effective Date shall be deemed not to have occurred (and this Restatement Agreement shall cease to be in effect) if the Repayment Condition is not satisfied at or prior to 11:59 p.m., New York City time, on October 27, 2010.
Appears in 1 contract
Effectiveness. This Agreement Incremental Term Facility Amendment shall become effective on and as of the date (the “First Incremental Amendment Effective Date”) on which each of the following conditions precedent is satisfied (such date, the “Effective Date”):shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received duly executed and delivered counterparts of this Agreement Incremental Term Facility Amendment that, when taken together, bear the signatures of Parent(i) Holdings, (ii) the Borrower, (iii) each Subsidiary Guarantor, each Incremental 2018 Term F Lender other Guarantor (iv) the Administrative Agent and the Required Lenders (determined immediately after giving effect to the incurrence of iv) the Incremental 2018 Term F Loans and the use of proceeds thereof).Lender;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower (A) certifying that the conditions precedent set forth in Sections 4.02(a) and (b) of the Credit Agreement shall have been satisfied on and as of the First Incremental Amendment Effective Date, (B) certifying compliance with clauses (A) through (E) of Section 2.14(a)(ii) of the Credit Agreement and (C) containing the true and complete calculations (in reasonable detail) required to show compliance with Section 2.14(a)(ii)(B) and Section 2.14(a)(ii)(C) of the Credit Agreement;
(c) the Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form of the certificate delivered pursuant to Section 4.01(a)(vi) of the Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by this Incremental Term Facility Amendment on the First Incremental Amendment Effective Date) attesting to the Solvency of the Borrower and its Restricted Subsidiaries (taken as a whole) after giving effect to this Incremental Term Facility Amendment and the incurrence of the Incremental Term Loans established pursuant hereto;
(d) the Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and the authorization of this Incremental Term Facility Amendment and amendment of the Credit Agreement and the other transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received favorable written opinion customary legal opinions of (i) BassYoung ▇▇▇▇▇▇▇ Stargatt & ▇▇▇▇▇▇ LLP, Delaware counsel to the Loan Parties and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLCLLP, New York counsel for Parent to the Loan Parties, in each case, as to any matter reasonably requested by the Administrative Agent, addressed to the Lenders and the BorrowerAdministrative Agent, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the First Incremental Amendment Effective Date and certifying (A) that attached thereto is a true in form and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof substance reasonably satisfactory to the Administrative Agent, which the Loan Parties hereby request such counsel to deliver;
(f) all of the conditions specified in Section 2.14 of the Credit Agreement with respect to Incremental Term Loans shall have been satisfied, including receipt by the Administrative Agent on of a Committed Loan Notice; and
(g) the Closing Date, Administrative Agent and the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Datearrangers of this Incremental Term Facility Amendment, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer payment of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees fees and other amounts due and payable on or prior to the First Incremental Amendment Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender Date and, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force , including the reasonable fees, charges and effect on disbursements of counsel for the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security DocumentAdministrative Agent. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders Borrower and the other Lenders under the Credit Agreement of the First Incremental Amendment Effective Date Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Effectiveness. This Agreement Amendment shall become effective effective, and this Amendment thereafter shall be binding on each of the parties hereto and their respective successors and assigns, as of the date on which Fourth Amendment Closing Date, upon the execution and delivery to the Administrative Agent and each Funding Agent of the following conditions precedent is satisfied (such date, the “Effective Date”):following:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, Amendment executed by each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).parties hereto;
(b) The a Confirmation of Guaranty relating to the Performance Guaranty, confirming continuing applicability of the Performance Guaranty in connection with the execution of this Amendment, including the addition of the Mizuho Owners (as defined in the RPAA, as amended hereby) as parties to the RPAA and the extension of the Scheduled Expiry Date as effected hereby;
(c) an executed copy of the Transaction Fee Letter (as amended and restated as of the Fourth Amendment Closing Date), together with payment to the Person(s) entitled thereto of any and all fees referred to therein as payable on the Fourth Amendment Closing Date;
(d) an Opinion of Counsel of ▇▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the Fourth Amendment Closing Date, with respect to corporate matters, validity and enforceability of the RPAA as amended by this Amendment, in form and substance reasonably satisfactory to the Administrative Agent, each Funding Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered counsel to the Administrative Agent and the Funding Agents;
(or its counsele) its executed signature page a reliance letter from ▇▇▇▇▇ ▇▇▇▇▇ LLP, addressed to this Agreement at or prior to 12:00 noonMizuho, New York City timeauthorizing reliance by Mizuho on the Opinions of Counsel of ▇▇▇▇▇ ▇▇▇▇▇ LLP, on March 5dated as of February 14, 2015 2020 (each, a “Consenting Lender”covering the matters described in Section 4.1(k) and 4.1(l) of the Existing RPAA), an amendment fee in an amount equal form and substance reasonably satisfactory to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.Mizuho;
(cf) The Administrative Agent shall have received a favorable written opinion of (i) BassSecretary’s certificates with respect to the Transferor, ▇▇▇▇▇ & and each Guarantor;
(g) good standing certificates of each of ▇▇▇▇ PLC▇▇, counsel for Parent the Transferor and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, Guarantor from the Secretary of State of its state the State of organizationDelaware dated a date reasonably near the Fourth Amendment Closing Date; and
(iih) a certificate resolutions of the Secretary member, manager or Assistant Secretary board of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Datedirectors, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered of ▇▇▇▇▇, the Transferor and each Guarantor in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) execution of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders this Amendment and the other Lenders under the Credit Agreement of the Effective Date applicable Related Documents and such notice shall be conclusive and bindingother deliverables being executed in connection with this Amendment.
Appears in 1 contract
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Effectiveness. This Agreement Amendment shall become effective on and as of the date on which each of the following conditions precedent is satisfied first above written (such date, the “Amendment Effective Date”):) when:
(a) The the Administrative Agent shall have received duly executed and delivered counterparts of this Agreement Amendment that, when taken together, bear the signatures of Parent(i) each Loan Party, (ii) each Consenting Term Lender (if any), (iii) the Borrower, each Subsidiary Guarantor, each Incremental 2018 New Term F Lender and (iv) Tranche B-3 Euro Term Lenders under the Existing Credit Agreement that, immediately prior to the effectiveness of this Amendment, constitute the Required Lenders (determined immediately after giving effect to but, in making this determination, only the incurrence of the Incremental 2018 Tranche B-3 Euro Term F Loans and the use of proceeds thereofLenders will be taken into account).;
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as with respect to each Loan Party, secretary’s certificates of the type delivered to the good standing Administrative Agent pursuant to Section 4.01(c) of each Loan Party the Existing Credit Agreement (as such term is defined in the Existing Credit Agreement), dated as of a recent datethe Amendment Effective Date, from the Secretary of State of its state of organization; (ii) a certificate of a Responsible Officer confirming compliance with the Secretary or Assistant Secretary condition set forth in paragraph (e) of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) this Section 4, and (2iii) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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 favorable written opinion (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof addressed to the Administrative Agent on and the Closing DateLenders party hereto), in form and substance reasonably satisfactory to the First Restatement Effective DateAdministrative Agent, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Second Restatement Loan Parties, dated as of the Amendment Effective Date or the Third Restatement Effective Date, as applicable, certifying that no and covering such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of matters relating to the Loan Documents to which such person is a party, Parties and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents Amendment as the Administrative Agent may reasonably request.;
(ec) The the Administrative Agent, the Consenting Term Lenders and the New Term Lender shall have received payment of all fees and expenses required to be paid or reimbursed by the Borrower or any other Loan Party under or in connection with this Amendment and any other Loan Document, including those fees and expenses set forth in Section 10 hereof;
(d) the Administrative Agent shall have received a certificate, dated payment of all accrued but unpaid interest on the Existing Term Loans through (but not including) the Amendment Effective Date Date;
(e) the representations and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent warranties set forth in paragraphs (b) Section 3 hereof shall be true and (c) of Section 4.01 correct as of the Credit Agreement.Amendment Effective Date; and
(fi) The at least five Business Days prior to the Amendment Effective Date, the Administrative Agent and the Lenders shall have received all Fees documentation and other amounts due and payable on information required by bank regulatory authorities or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid reasonably requested by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral itself or on behalf of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrowerany Consenting ▇▇▇▇ ▇▇▇▇▇▇, the Incremental 2018 New Term F Lenders Lender or any other Lender under or in respect of applicable “know-your-customer” and anti-money laundering rules and regulations, including the other Lenders under USA PATRIOT Act, that was requested at least 10 Business Days prior to the Credit Agreement of the Amendment Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five Business Days prior to the Amendment Effective Date, any Consenting Term Lender, the New Term Lender or any other Lender that has requested, in a written notice to the Borrower at least 10 Business Days prior to the Amendment Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such notice shall be conclusive and bindingBeneficial Ownership Certification.
Appears in 1 contract
Sources: Amendment No. 2 to the Second Amended and Restated Credit Agreement (Chemours Co)
Effectiveness. This Agreement shall become effective The effectiveness of this Amendment is subject to the satisfaction on and as of the date on which each Second Amendment Date of the following conditions precedent is satisfied precedent:
(such datei) the Administrative Agent shall have received this Amendment, executed and delivered by the Administrative Agent, Holdings, the “Effective Date”):Borrower and the Required Lenders;
(aii) the Administrative Agent shall have received (1) for distribution to those Lenders who have consented to this Amendment and have delivered (and released) to the Administrative Agent an executed counterpart hereof by facsimile at (▇▇▇) ▇▇▇-▇▇▇▇, attention ▇▇▇▇▇ ▇▇▇, by 5:00 p.m. (New York City time) on or prior to Wednesday, April 30, 2008 (each such Lender, a “Qualifying Lender”) but who have not been excluded pursuant to the proviso in this paragraph, an amendment fee equal to 5% of the sum of the unpaid principal amount of the Term Loans and the Revolving Commitments held by such Lender on the Second Amendment Date, provided, however, that no amendment fee shall be payable to a Qualifying Lender whose executed counterpart hereof has been received by the Administrative Agent after the executed counterparts of Qualifying Lenders constituting holders of in excess of 50% of the sum of the aggregate unpaid principal amount of the Term Loans then outstanding and the Revolving Commitments then in effect have been received by the Administrative Agent (as determined by the Administrative Agent in its sole discretion based on the order of receipt by the Administrative Agent by facsimile at (▇▇▇) ▇▇▇-▇▇▇▇, attention ▇▇▇▇▇ ▇▇▇, of the counterparts hereof executed by Lenders), (2) all fees then due and payable in connection with this Amendment; and (3) all expenses payable by the Borrower as set forth in the Credit Agreement for which invoices have been presented (including the reasonable fees and expenses of legal counsel) on or before the Second Amendment Date;
(iii) the Administrative Agent shall have received a certificate of each Loan Party, dated the date hereof substantially in the form of Exhibit A hereto, with appropriate insertions and attachments; and
(iv) The Administrative Agent shall have received duly the executed legal opinions of counsel to the Borrower and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of addressing such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents matters as the Administrative Agent may shall reasonably request.
(e) The Administrative Agent shall have received a certificate, dated including, without limitation, the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment enforceability of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan DocumentDocuments.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
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Effectiveness. This Agreement Amendment No. 3 shall become effective on and as of the date on which each of the following conditions precedent is satisfied (such date, the “Amendment No. 3 Effective Date”):) that the following conditions have been satisfied:
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantor, each Incremental 2018 Term F Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof).
(b) The Administrative Agent shall have received payment from the Borrower, for the account of each 2021 Term D Lender that shall have unconditionally and irrevocably delivered to the Administrative Agent (or its counsel) its executed signature page to this Agreement at or prior to 12:00 noon, New York City time, on March 5, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part.
(c) The Administrative Agent shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2.
(d) The Administrative Agent shall have received (i) a certificate as executed signature pages to the good standing of this Amendment No. 3 from each Loan Party as of a recent date, from and the Secretary of State of its state of organizationLenders; and (ii) a certificate that certain Reaffirmation and Consent dated as of the Secretary date hereof, executed by the Guarantor;
(b) All fees and out-of-pocket expenses, including of Agent, required to be paid or Assistant Secretary reimbursed by the Borrowers as of each Loan Party dated the Amendment No. 3 Effective Date Date, including all Lender Group Expenses required to be paid or reimbursed under Section 15.7 of the Credit Agreement;
(c) The representations and certifying warranties in Section 3 of this Amendment No. 3 shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on the Amendment No. 3 Effective Date;
(d) Agent shall have received (A) that attached thereto is member or board resolutions, (B) a true and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporationformation, certified incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the applicable state of organization, in its organization (or a certification from each case of such Loan Party as in effect on the Effective Date and at all times since a date prior that there have been no changes to the date of the resolutions described in clause (B) below, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof organization, including all amendments thereto, that were previously delivered to Agent), and a certificate as to the Administrative Agent on good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority, and (C) a certificate of a responsible officer of each Loan Party dated the Closing Date, the First Restatement Effective Date, the Second Restatement Amendment No. 3 Effective Date or the Third Restatement Effective Date, as applicable, and certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors by-laws or operating (or equivalent thereoflimited liability company) agreement of such Loan Party authorizing as in effect on the execution, delivery and performance of the Amendment No. 3 Effective Date (or a certification from each Loan Documents to which such person is a party, and Party that such resolutions there have not been modified, rescinded or amended and are in full force and effect and (C) as no changes to the incumbency and specimen signature of each officer executing this Agreement by-laws or any other document operating (or limited liability company) agreement, including all amendments thereto, that were previously delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.Agent);
(e) The Administrative All other documents, opinions or information reasonably requested by Agent;
(f) Payment in cash by the Borrowers of an increased commitment fee (to Agent shall have received a certificate, dated on account of and on behalf of each Lender executing this Amendment No. 3) in the Effective Date and signed by a Financial Officer amount of the Borrower, confirming compliance with the $155,000; and
(g) All conditions precedent to an Increase set forth in paragraphs (bSection 2.14(b) and (c) of Section 4.01 of the Credit Agreement.
(f) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(g) The Security Documents shall be in full force and effect on the Effective Date, and the Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify the Borrower, the Incremental 2018 Term F Lenders and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding.
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Effectiveness. This Agreement shall become effective, and the amendments provided for herein shall be effective on and as provided herein as of the date on which each Effective Date, upon the satisfaction of the following conditions precedent is satisfied (such date, the “Effective Date”):precedent:
(a) The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this Agreement, duly and validly executed and delivered counterparts by duly authorized officers of this Agreement that, when taken together, bear the signatures of Parent, the Borrower, each Subsidiary Guarantorthe Guarantors, each Incremental 2018 Term F the Administrative Agent, the Issuing Lender, the Swing Line Lender and the Required Lenders (determined immediately after giving effect to the incurrence of the Incremental 2018 Term F Loans and the use of proceeds thereof)Lenders.
(b) The Administrative Agent shall have received payment a secretary’s certificate from the BorrowerBorrower certifying (A) officers’ incumbency, for (B) the account resolutions of each 2021 Term D Lender the Board of Directors of the Borrower authorizing this Agreement, and (C) true and complete copies of its organizational documents or that shall no changes have unconditionally and irrevocably delivered occurred to such organizational documents since copies of such documents were certified to the Administrative Agent (or its counsel) its executed signature page to this with the closing of the Credit Agreement at or prior to 12:00 noon, New York City time, on March 531, 2015 (each, a “Consenting Lender”), an amendment fee in an amount equal to 0.05% of the aggregate outstanding principal amount of such Consenting Lender’s 2021 Term D Loans as of the Effective Date. Such fees shall be payable in immediately available funds and, once paid, shall not be refundable in whole or in part2008.
(c) The Administrative Agent On or prior August 12, 2009 the Borrower shall have issued the Series A Preferred Stock, and the Borrower shall have received a favorable written opinion of (i) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Parent and the Borrower, substantially proceeds therefrom in an aggregate amount equal to the effect set forth on Exhibit B-1 and (ii) the general counsel of Parent, substantially to the effect set forth in Exhibit B-2or greater than $15,000,000.
(d) The Administrative Agent shall have received (i) a certificate Borrowing Base Certificate in the form attached hereto as to the good standing of each Loan Party an Exhibit, dated as of a recent dateJune 30, from the Secretary of State of its state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date 2009 and certifying (A) that attached thereto is a true fully completed and complete copy of (1) the by-laws (or equivalent thereof) and (2) the certificate or articles of incorporation, certified as of a recent date executed by the Secretary of State of the applicable state of organization, in each case 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, (or, if such by-laws (or equivalent thereof) or certificate or articles of incorporation have not been amended or modified since any delivery thereof to the Administrative Agent on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date or the Third Restatement Effective Date, as applicable, certifying that no such amendment or modification has occurred), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent thereof) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably requestBorrower.
(e) The Administrative Agent No Default, other than the Potential Defaults, shall have received a certificate, dated occurred and be continuing as of the Effective Date and signed by a Financial Officer or as of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreementdate this Agreement is entered into.
(f) The Administrative Agent representations and warranties in this Agreement shall have received be true and correct in all Fees and other amounts due and payable on or prior to the Effective Date, including upfront fees (which may be in the form of original issue discount) in the amounts agreed with each Incremental 2018 Term F Lender and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documentmaterial respects.
(g) The Security Documents Borrower shall be in full force and effect on have paid to the Effective DateAdministrative Agent (i) for the account of each Lender, and the Collateral Agent on behalf an amendment fee equal to 0.50% of the Secured Parties shall have a security interest sum of (a) such Lender’s Revolving Commitment plus (b) such Lender’s pro rata share of the principal amount of all Term Advances outstanding on August 6, 2009; and (ii) all fees and expenses of the Administrative Agent’s outside legal counsel and other consultants pursuant to all invoices presented for payment on or prior to the date this Agreement is entered into. The Borrower, ▇▇▇▇▇ Fargo Bank, N.A. and ▇▇▇▇▇ Fargo Securities LLC hereby acknowledge and agree that the amendment fee provided for in clause (i) is the upfront fee referred to in the Collateral of the type and priority described in each Security Document. The Administrative Agent shall notify fee letter among the Borrower, the Incremental 2018 Term F Lenders ▇▇▇▇▇ Fargo Bank, N.A. and the other Lenders under the Credit Agreement of the Effective Date and such notice shall be conclusive and binding▇▇▇▇▇ Fargo Securities LLC dated July 13, 2009.
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