Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders): (a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below)); (b) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender; (c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization; (d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date; (i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts; (f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein; (g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification; (h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and (i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may be.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving LendersAdministrative Agent):
(a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by the Parent BorrowerHoldings, each other Incremental Borrower and each Loan Party party heretoParty, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below))New Term Lender;
(b) the Administrative Agent (or its counsel) shall have received (i) an Officer’s Certificate of or on behalf of Holdings, each Incremental Borrower and each other Loan Party, dated the Amendment Effective Date, in substantially the form delivered on the Closing Date, with appropriate insertions and attachments, including copies of resolutions of the Board of Directors and/or similar governing bodies of Holdings, each Incremental Borrower and each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and, in the case of the Incremental Borrowers, the borrowings hereunder and under the Credit Agreement, certified organizational authorizations (if required by applicable law or customary for market practice in the relevant jurisdiction), incumbency certifications, the certificate of incorporation or other similar Organizational Documents of Holdings, each Incremental Borrower and each other Loan Party certified by the relevant authority of the jurisdiction of organization, registration or incorporation of Holdings, each Incremental Borrower and each other Loan Party (only where customary in the applicable jurisdiction) and bylaws or other similar Organizational Documents of Holdings, each Incremental Borrower and each other Loan Party certified by a Responsible Officer as being in full force and effect on the Amendment Effective Date, (ii) a good standing certificate (to the extent such concept exists in the relevant jurisdictions) for Holdings, each Incremental Borrower and each other Loan Party from its jurisdiction of organization, registration or incorporation and (iii) in relation to the Lux Borrower, (1) an up-to-date electronic certified true and complete excerpt of the Companies Register dated no earlier than one Business Day prior to the Amendment Effective Date, (2) a solvency certificate dated as of the Amendment Effective Date (signed by a director or authorized signatory) that it is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its director or, as far as it is aware, by any other Person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, (3) an up-to-date electronic certified true and complete certificate of non-registration of judgments (certificat de non-inscription d’une décision judiciaire), issued by the Companies Register no earlier than one Business Day prior to the Amendment Effective Date and reflecting the situation no more than two Business Days prior to the Amendment Effective Date certifying that, as of the date of the day immediately preceding such certificate, the Lux Borrower has not been declared bankrupt (en faillite), and that it has not applied for general settlement or composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), or reprieve from payment (sursis de paiement), judicial liquidation (liquidation judiciaire) or the appointment of a temporary administrator (administrateur provisoire), such other proceedings listed at Article 13, items 2 to 12 and Article 14 of the Luxembourg Act dated December 19, 2002 on the Register of Commerce and Companies, on Accounting and on Annual Accounts of the Companies (as amended from time to time) (and which include foreign court decisions as to faillite, concordat or analogous procedures according to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)) and (4) an electronic certified copy of the resolution of its directors (or similar body) approving the Loan Documents to which it is a party and approving the execution, delivery and performance of, and authorizing named persons to sign the Loan Documents to which it is party and any documents to be delivered by it under any of the same;
(c) the Administrative Agent shall have received the Security Documents set forth on Schedule 2 hereto executed and delivered by the Loan Parties party thereto;
(d) the Administrative Agent (or its counsel) shall have received a customary written opinion from of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to for Holdings and the Loan Parties and Subsidiary Guarantors, (ii) M▇▇▇▇▇Morris, N▇▇▇▇▇▇Nichols, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to for Holdings and the Loan PartiesSubsidiary Guarantors, (iii) Fried, Frank, Harris, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP, in each case, dated its capacity as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of English law counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date New Term Lenders, (iv) Loyens & Loeff Luxembourg SARL, in its capacity as special Luxembourg counsel to the extent due and invoiced to the Parent Lux Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (iiv) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beNautaDutilh Avocats Luxembourg S.á.r.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving 2025 Incremental Bridge Term Loan Lenders):
(a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings and the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below))2025 Incremental Bridge Term Loan Lender;
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from certificate signed by a Responsible Officer of Holdings and the Borrower (the “Thirteenth Amendment Loan Parties”), (i) Dcertifying that the articles of formation (or equivalent document) of such Thirteenth Amendment Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Thirteenth Amendment Loan Party, and the operating agreement (or equivalent document) of such Thirteenth Amendment Loan Party, either (x) has not been amended since the prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Thirteenth Amendment Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Thirteenth Amendment Loan Party approving this Amendment, the transactions contemplated herein and authorizing execution and delivery hereof, certified by a Responsible Officer of such Thirteenth Amendment Loan Party as of the Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Thirteenth Amendment Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the 2025 Incremental Bridge Term Loan Lenders on the Amendment Effective Date, a customary written opinion of L▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to for the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Thirteenth Amendment Loan Parties, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to the Thirteenth Amendment Loan Parties certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(e) the Administrative Agent (or its counsel) shall have received a solvency certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of Holdings or the Parent Borrower certifying (or, at the option of Holdings or the Borrower, a third party opinion as to the matters set forth thereinsolvency of Holdings and its subsidiaries on a consolidated basis in form and substance reasonably satisfactory to the Amendment No. 13 Lead Arranger issued by a nationally recognized firm reasonably acceptable to the Amendment No. 13 Lead Arranger);
(gf) each Third Amendment Revolving Lender the Administrative Agent (or its counsel) shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is any Loan Party required by United States bank regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) in each case to the extent so reasonably requested in writing by the Parent Administrative Agent no less than ten Business Days prior to the Amendment Effective Date);
(g) all fees and reasonable out-of-pocket expenses required to be paid by (or on behalf of) the Borrower qualifies to the Administrative Agent (including pursuant to Section 9.03 of the Existing Credit Agreement and pursuant to Section 7 hereof) or the Amendment No. 13 Lead Arranger pursuant to any commitment letter or fee letter with the Borrower on or before the Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (to the extent invoiced with reasonable detail at least three Business Days prior to the Amendment Effective Date), including pursuant to that certain Fee Letter, dated as a “legal entity customer” under 31 C.F.R. § 1010.230 of May 3, 2025 between the Amendment No. 13 Lead Arranger and the Borrower (the “Beneficial Ownership RegulationBridge Fee Letter”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer Borrowing Request in respect of the Parent Borrower certifying as 2025 Incremental Bridge Term Loans to be made on the Amendment Effective Date five (5) Business Days prior to the matters referred Amendment Effective Date (or such shorter time as the Amendment No. 13 Lead Arranger may agree);
(i) the Specified Representations set forth in the Amended Credit Agreement with respect to the Amendment and the Amended Credit Agreement shall be true and correct in clauses all material respects as of the Amendment Effective Date (dexcept in the case of any representation and warranty that expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that if any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition thereof shall be the definition of “Material Adverse Effect” (as defined in the Amendment No. 13 Effective Date Acquisition Agreement) and for purposes of the making or deemed making of such Specified Representation on, or as of, the Amendment Effective Date (hor any date prior thereto);
(j) no Event of Default under Section 7.01(a), (f) or (g) of the Existing Credit Agreement shall exist immediately prior to or immediately after giving effect to the effectiveness of this Section 4Amendment; and
(k) The Amendment No. For purposes 13 Effective Date Acquisition (as defined in the Amended Credit Agreement) shall have been, or substantially concurrently with the initial funding of determining whether the conditions specified in this Section 4 have been satisfied 2025 Incremental Bridge Term Loans on the date hereofAmendment Effective Date, by shall be, consummated in all material respects in accordance with the terms of the Amendment No. 13 Effective Date Acquisition Agreement (as defined in the Amended Credit Agreement). By executing this Amendment, the 2025 Incremental Bridge Term Loan Lenders and the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory have waived, all conditions hereto and to the Amendment Effective Date. The Administrative Agent or shall post a notice of effectiveness and occurrence of the Third Amendment Revolving LendersEffective Date, as which shall be conclusive. The Administrative Agent and the case may be2025 Incremental Bridge Term Loan Lenders acknowledge and agree that the Amendment Effective Date is July 10, 2025.
Appears in 1 contract
Sources: First Lien Credit Agreement (Lucky Strike Entertainment Corp)
Amendment Effective Date. This Amendment shall become effective as of be binding upon all parties to the first date (Loan Papers on the “Third Amendment Effective Date”) on last day upon which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):has occurred:
(a) the Counterparts of this Amendment shall have been executed and delivered to Administrative Agent (by the Company, Administrative Agent, and the Determining Lenders or its counsel) when Administrative Agent shall have received a counterpart signature page of this Amendment duly telecopied, telexed, or other evidence satisfactory to it that all such parties have executed by the Parent Borrower, each other Loan Party party hereto, the and are delivering to Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));counterparts thereof.
(b) Counterparts of the LLC Guaranty shall have been executed and delivered to the Administrative Agent (by the Guarantor or its counsel) when the Administrative Agent shall have received telecopied, telexed, or other evidence satisfactory to it that the Guarantor has executed and is delivering to the Administrative Agent counterparts thereof.
(c) The Administrative Agent shall have received from the Company and Guarantor a customary opinion from certificate dated as of the Amendment Effective Date (defined below) of its secretary, assistant secretary, manager or general partner as applicable (i) D▇▇▇▇ ▇▇▇▇ & Was to resolutions of its board of directors or managers or their equivalent authorizing the execution and performance of this Amendment and the LLC Guaranty, as applicable, (ii) the certificate or articles of incorporation, the bylaws, or the limited liability company agreement, as applicable, and (ii) if the officer executing this Amendment and the LLC Guaranty is not named in the incumbency certificate delivered at the time of execution of the Term Loan Agreement, as to the incumbency and signature of said officer.
(d) The Administrative Agent shall have received favorable opinions of ▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇. ▇▇▇ ▇▇▇▇▇, NGeneral Counsel of the Company, and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Arsht & Tcounsel for the Company, as to the due authorization, execution and delivery of this Amendment.
(e) Evidence satisfactory to the Administrative Agent that the Company shall have received gross cash proceeds from the TWC Asset Dispositions, the ▇▇▇▇▇▇▇ LLP, Loan and the issuance of TWC Preferred Stock in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as aggregate amount of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;no less than $2,100,000,000.
(cf) the Administrative Agent (or its counsel) The Company shall have received entered into (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit L/C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations Consent and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Fourth Amendment to the Primary Credit Agreement, each in form and substance satisfactory to Administrative Agent and the Third Amendment Revolving Lenders Determining Lenders, and all conditions precedent to the effectiveness thereof shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;fully satisfied.
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the The Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying such other assurances, certificates, documents and consents as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and may require. Upon satisfaction of the Third foregoing conditions, this Amendment Revolving Lenders shall be deemed to have consented toeffective on and as of July 3 1, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to 2002 (the Administrative Agent or the Third "Amendment Revolving Lenders, as the case may beEffective Date").
Appears in 1 contract
Amendment Effective Date. This Amendment The obligations of the Lenders, the Issuing Bank and the Administrative Agent under this Agreement shall become effective as of upon the first date (the “Third Amendment Effective Date”) on which each satisfaction of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):conditions:
(a) the The Administrative Agent (or its counsel) shall have received a counterpart signature page favorable written opinion dated as of this the Amendment duly executed by the Parent BorrowerEffective Date of Mayer, each other Loan Party party heretoBrown, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ Maw LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to for the Loan Parties, in each case, dated as of the Third Amendment Effective Date form and addressed substance reasonably satisfactory to the Administrative Agent Agent, and each Third Amendment Revolving Lender;Holdings, the Borrower and the Subsidiaries hereby request such counsel to deliver such opinion.
(cb) the The Administrative Agent (or its counsel) shall have received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, dated certified as of a recent date by the Third Amendment Effective DateSecretary of State of the state of its organization, substantially in the form of Exhibit C and a certificate as to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) good standing of each Loan Party certified by the relevant authority as of a recent date, from such Secretary of State; (ii) a certificate of the jurisdiction Secretary or Assistant Secretary of organization of such each Loan Party dated the Amendment Effective Date and certifying (yA) that attached thereto is a true and complete copy of its the by-laws or operatingof such Loan Party as in effect on the Amendment Effective Date, management, partnership or similar agreement (or, B) in each the case of clauses (x) and (y) abovethe Borrower, that attached thereto is a certification that true and complete copies copy of such documents or agreements have been previously attached resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents to which it is a certificate delivered to party, the Administrative Agent under the Existing Credit Agreement borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents or agreements of the Borrower have not been amended except since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as otherwise attached to such certificate delivered to the Administrative Agent incumbency and specimen signature of each officer of the Borrower executing any Loan Document or any other document delivered in connection herewith on behalf of the Third Amendment Effective Date Borrower; (iii) a certificate of another officer as to the incumbency and certified therein as being specimen signature of the only amendments thereto as Secretary or Assistant Secretary of such date), and the Borrower executing the certificate pursuant to (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;above.
(dc) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the The Administrative Agent shall have received a certificate of certificate, dated the Amendment Effective Date and signed by a Responsible Financial Officer of the Parent Borrower certifying as to Borrower, confirming compliance with the matters referred to conditions precedent set forth in clauses paragraphs (b) and (c) of Section 4.01.
(d) The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of each of Holdings and the Borrower and (hii) an Affirmation and Consent to the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of this Section 4. For purposes each of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this AmendmentHoldings, the Administrative Agent Borrower and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beSubsidiary Guarantor.
Appears in 1 contract
Amendment Effective Date. This Amendment The amendment of the Existing Restated Credit Agreement in the form of this Agreement shall not become effective as of until the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been is satisfied (or waived by the Third Amendment Revolving Lendersin accordance with Section 9.02):
(a) the The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the Amendment Agreement 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 the Amendment duly executed by Agreement) that such party has signed a counterpart of the Parent BorrowerAmendment Agreement.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, each existence and, to the extent applicable, good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Party party heretoParties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by the President, a Vice President or a Financial Officer of each Third Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(d) The Existing Parent Credit Agreement shall have been amended and restated as the Parent Credit Agreement.
(e) The Administrative Agent shall have received all interest, fees and other amounts due and payable or accrued on or prior to the Amendment Revolving Effective Date under this Agreement or the Existing Restated Credit Agreement, including, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under this Agreement or any other Loan Document.
(f) Each Tranche B Lender (in each case including by way of Electronic Signatures (as defined below));
(b) in the Administrative Agent (or its counselExisting Parent Credit Agreement) shall have received (or, substantially simultaneously with the funding of the term loans on the Amendment Effective Date pursuant to the Parent Credit Agreement, shall receive) payment in full of the principal of and interest accrued on each Tranche B Term Loan (as defined in the Existing Parent Credit Agreement) held by it and all other amounts owing to it or accrued for its account under the Existing Parent Credit Agreement, and all interest, fees and other amounts accrued or owing under each of the Existing Parent Credit Agreement and the Existing Restated Credit Agreement, including to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrowers thereunder, shall have been (or, substantially simultaneously with the funding of the term loans on the Amendment Effective Date pursuant to the Parent Credit Agreement, shall be) paid in full.
(g) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the execution of this Agreement shall have been obtained.
(h) The Administrative Agent shall have received a customary favorable written opinion from (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of each of (i) DDavis Polk & Wardwell, New York counsel for the Borrowers and the Subsidiaries, sub▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLPin ▇▇▇ ▇▇▇m of Exhibit D-1, in its capacity as special New York counsel to the Loan Parties and (ii) MJones, Walker, Waechter, Poitevant, Carrère & Denègre, L.L.P., U.S. counsel for the Borrowers and ▇▇▇ ▇▇▇▇idiaries, substantially ▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇ ▇▇▇ LLPform of Exhibit D-2, (iii) local counsel in its capacity each jurisdiction where a Subsidiary Guarantor, a Subsidiary Grantor (as special Delaware counsel defined in the Collateral Agreement) or a Permitted Pledgee the Equity Interests in which are being pledged pursuant to the Loan PartiesCollateral Agreement or any Foreign Pledge Agreement is organized, in each case, dated as of the Third Amendment Effective Date case in form and addressed substance reasonably satisfactory to the Administrative Agent and each Third Amendment Revolving Lender;
Agent, (civ) Indonesian counsel for the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective DateBorrowers, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date)D-3, and (iiv) a good standing certificate as Indonesian counsel for the Lenders, substantially in the form of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;Exhibit D-4.
(di) each The Collateral and Guarantee Requirement shall have been satisfied.
(j) The FI Trustee shall have received opinions to the effect that it does not have to qualify to do business in Louisiana or Indonesia by virtue of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents or the activities contemplated thereby. The Administrative Agent shall be true promptly notify the Borrowers and correct in all material respects (or in all respects if qualified by materiality) on and as the Lenders of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beconclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Amendment Effective Date. This The Amendment Effective Date shall become effective as of be the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been condition set forth below is satisfied (or waived by the Third Amendment Revolving Lenders)::
(a) the a. The Administrative Agent (or its counsel) shall have received a counterpart signature page duly executed counterparts of this Amendment duly executed by from the Parent Borrower, each other Loan Party party hereto, the Administrative Agent Borrower and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) shall have received a customary opinion and an acknowledgement from (i) D▇▇▇▇ ▇▇▇▇▇▇ & WCo., LLC (“▇▇▇▇▇▇▇▇▇ LLC”).
b. The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent and the Lenders dated the Amendment Effective Date) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to for the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLPBorrower, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Third Amendment Effective Date form and addressed substance reasonably satisfactory to the Administrative Agent and each Third Amendment Revolving Lender;Agent.
(c) the c. The Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C and substance reasonably satisfactory to the Existing Credit Agreement, Administrative Agent with appropriate insertions insertions, executed by any Responsible Officer of such Loan Party, and attachments, including without limitation or attaching the documents referred to in paragraph (xd) the certificate of incorporation this Section 2.
d. The Administrative Agent shall have received a copy of (or equivalenta) each Organizational Document of each Loan Party certified certified, to the extent applicable, as of a recent date by the relevant authority applicable Governmental Authority, (b) signature and incumbency certificates of the jurisdiction Responsible Officers of organization of such each Loan Party executing the Loan Documents to which it is a party, (c) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and (y) authorizing the execution, delivery and performance of Loan Documents to which it is a true and complete copy party, certified as of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein by its secretary, an assistant secretary or a Responsible Officer as being the only amendments thereto as of such date)in full force and effect without modification or amendment, and (iid) a good standing certificate as (to the extent such concept exists) from the applicable Governmental Authority of a recent date for each Loan Party from its relevant authority of its Party’s jurisdiction of organization;incorporation, organization or formation.
e. The Administrative Agent shall have received all fees, closing payments and other amounts previously agreed in writing by the Borrower to be due and payable on or prior to the Amendment Effective Date, including, to the extent invoiced at least three Business Days prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (dincluding reasonable fees, charges and disbursements of counsel) each of the representations and warranties made required to be reimbursed or paid by any Loan Party under any Loan Document.
f. The representations and warranties of each Loan Party set forth in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date; provided that, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall have been so be true and correct in all material respects as of such earlier date;; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds g. As of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; andcontinuing.
(i) the h. The Administrative Agent shall have received a certificate substantially in the form attached to the Original Credit Agreement as Exhibit F (after giving effect to the Refinancing Transactions) from the chief financial officer or similar officer of the Borrower; and
i. The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Responsible Officer of the Parent Borrower certifying as to Borrower, confirming compliance with the matters referred to conditions precedent set forth in clauses paragraphs (df) and (hg) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the above.
j. The Administrative Agent and shall have received a Borrowing Request in accordance with the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to requirements of Section 2.03 of the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beOriginal Credit Agreement.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as (a) The effectiveness of this Amendment, the amendments set forth in Sections 3 and 4, the making of the 2025 Refinancing Term Loans and effectiveness of the 2025 Refinancing Revolving Credit Commitment and the making of any 2025 Refinancing Revolving Credit Loans thereunder, in each case, are subject to the satisfaction (or waiver by the 2021 Refinancing Term Lenders and the 2021 Refinancing Revolving Credit Lenders) of the following conditions (the first date on which all such conditions precedent are satisfied (or waived), the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):
(ai) the Administrative Agent (or its counsel) shall have received a counterpart counterparty signature page pages of this Amendment duly executed by from each of the Parent Borrower, each other Loan Party party heretoGuarantor, the Administrative Agent each 2025 Refinancing Term Lender and each Third Amendment 2025 Refinancing Revolving Lender (in each case including by way of Electronic Signatures (as defined below))Credit Lender;
(bii) the Administrative Agent shall have received (A) copies of each Organizational Document of each Loan Party, as applicable, and, to the extent applicable, certified as of the Amendment Effective Date or a recent date prior thereto by the appropriate Governmental Authority; (B) signature and incumbency certificates of the officers of such Persons executing the Loan Documents on behalf of each Loan Party; (C) copies of resolutions of the Board of Directors of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents executed in connection with the Amendment, certified as of the Amendment Effective Date by any of its counseldirectors, secretary or an assistant secretary as being in full force and effect without modification or amendment and (D) other than with respect to the U.K. Borrower and, with respect to any other Loan Party, to the extent applicable and available in such Loan Party’s jurisdiction of organization, a good standing certificate from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the Amendment Effective Date or a recent date prior thereto;
(iii) the Administrative Agent shall have received a customary opinion from of (A) ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special United States counsel for the Company and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP, special English legal advisers for the Company as to capacity of the Designated Borrower and UK Borrower to enter this Amendment, dated as of the Amendment Effective Date.
(iv) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (a) that the conditions specified in Sections 5(b) and (c) have been satisfied and (b) that there has been no event or circumstance since September 28, 2024 that has had a Material Adverse Effect;
(v) Concurrently with the making of the 2025 Refinancing Term Loans, (a) the entire aggregate principal amount of the Existing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this Amendment becoming effective in connection therewith shall have been paid in full;
(vi) Concurrently with the availability of the 2025 Revolving Credit Facility, (i) Dthe Revolving Credit Commitments in effect immediately prior to this Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Existing Revolving Credit Loans outstanding (if any) immediately prior to this Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this Amendment becoming effective in connection therewith shall have been paid in full;
(vii) Any fees required to be paid pursuant to the Fee Letter on or before the Amendment Effective Date shall have been paid (or caused to have been paid) by the Company to the Administrative Agent on the Amendment Effective Date;
(viii) The Company shall have delivered a Committed Loan Notice with respect to the 2025 Refinancing Term Loans and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;
(ix) The Company shall have paid all fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel LLP for which invoices have been presented at least three (3) Business Days prior to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Third Amendment Effective Date (it is hereby expressly acknowledged and addressed agreed that any fees paid pursuant to the Administrative Agent and each Third Amendment Revolving Lender;
this clause (c) the Administrative Agent (or its counselix) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified be paid by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered Company to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such dateDate), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(dx) each of The Loan Parties shall have provided the representations documentation and warranties made by any Loan Party in or pursuant to other information regarding the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment Parties to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is are required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act and the CDD Rule and (ii) Beneficial Ownership Regulation, to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 Company shall have received written reasonable requests therefor (and in the “Beneficial Ownership Regulation”)case of any Lender request, through the Administrative Agent) at least five days three (3) Business Days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(ixi) The conditions specified in Section 2.19 of the Administrative Agent Credit Agreement with respect to the Refinancing shall have received a certificate of a Responsible Officer been satisfied (it being understood and agreed that, as of the Parent Borrower certifying as date hereof, such conditions shall be deemed to be satisfied).
(b) Without limiting the matters referred to in clauses (d) and (h) generality of this the provisions of the last paragraph of Section 4. For 9.03 of the Credit Agreement, for purposes of determining whether compliance with the conditions specified in this Section 4 have been satisfied on the date Section 6(a) hereof, by executing each 2025 Refinancing Term Lender and each 2025 Refinancing Revolving Credit Lender that has signed this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such 2025 Refinancing Term Lender or the Third Amendment such 2025 Refinancing Revolving LendersCredit Lender, as the case may be, prior to the Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Refinancing Amendment No. 4 and Amendment to Pledge and Security Agreement (Hologic Inc)
Amendment Effective Date. This Amendment shall become effective as of the date first date written above (the “Third Amendment Effective Date”) on which each ), upon the satisfaction of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent (or its counsel) shall have received may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a counterpart signature page of Responsible Officer in connection with this Amendment duly executed by and the Parent Borrower, each other Loan Documents delivered pursuant to this § 3.1 to which such Loan Party party hereto, is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party, General Partner and GP LLC is duly organized or formed, and that each Third Amendment Revolving Lender (Borrower is validly existing and in each case including good standing in its jurisdiction of organization, issued by way the appropriate authorities of Electronic Signatures (as defined below))such jurisdiction;
(biv) the Administrative Agent favorable opinions of (or its counselA) shall have received a customary opinion from (i) D▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowers, (B) Norton ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ US LLP, in its capacity as special Texas and New York counsel to the Loan Parties Borrowers, and (iiC) M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware Canadian counsel to the Loan PartiesPMCULC, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (iv) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified signed by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower Company certifying as to the matters referred to in clauses (dA) and (h) of this Section 4. For purposes of determining whether that the conditions specified in this Section 4 Section 4.02 (a) and (b) of the Credit Agreement have been satisfied on satisfied, (B) that there has been no event or circumstance since December 31, 2015 that has had or could be reasonably expected to have, either individually or in the date hereofaggregate, by executing this Amendmenta Material Adverse Effect, and (C) the current Debt Ratings; and
(vi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the Third validity against each Loan Party of this Amendment Revolving Lenders and each of the other Loan Documents to which it is a party shall have been obtained and shall be deemed in full force and effect.
(c) There shall not have occurred during the period from December 31, 2015 through and including the Amendment Effective Date any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have consented toa Material Adverse Effect, approved and there shall be no actions, suits, investigations, proceedings, claims or accepteddisputes pending or, to the knowledge of the Company, threatened in writing, at law, in equity, in arbitration or to be satisfied withbefore any Governmental Authority, each document or other matter required hereunder to be consented to or approved by or acceptable against the Company or satisfactory any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may behave a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):satisfied:
(ai) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by each of the Parent Borrower, each Guarantor, each Refinancing Term Lender, each Refinancing Revolving Lender and other Loan Party party heretoLenders (together with the Refinancing Term Lenders and Refinancing Revolving Lenders) sufficient to constitute, collectively, the Requisite Lenders;
(ii) the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) Lenders and their respective counsel shall have received a customary an original executed copy of the favorable written opinion from (i) Dof ▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to for the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Credit Parties, in each case, dated as of the Third Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders as of the Amendment Effective Date after giving effect to this Amendment (and each Third Amendment Revolving LenderCredit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent and such Lenders);
(ciii) the Administrative Agent (or its counsel) shall have received (i) a certificate copy of each Loan PartyOrganizational Document of each Credit Party certified, dated to the Third Amendment Effective extent applicable, as of a recent date by the applicable Governmental Authority, or, if reasonably acceptable to the Administrative Agent, a certification by an Authorized Officer that the applicable Organizational Documents delivered in connection with the Closing Date, remain in full force and effect and have not been amended, modified, revoked or rescinded since the Closing Date, as applicable, (ii) signature and incumbency certificates of the officers or directors of each Credit Party executing this Amendment, substantially in the form of Exhibit C the closing certificates delivered on the Closing Date, (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and, to the Existing Credit Agreementextent required in any jurisdiction, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority resolutions of the jurisdiction meeting of organization shareholders of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (orCredit Party, in each case authorizing the execution, delivery and performance of clauses (x) and (y) abovethis Amendment, a certification that true and complete copies certified as of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein by a director, its secretary, an assistant secretary as being the only amendments thereto as of such date), in full force and effect without modification or amendment and (iiiv) a good standing certificate as (to the extent such concept is applicable in the relevant jurisdiction) from the applicable Governmental Authority of a recent date for each Loan Party from its relevant authority of its Credit Party’s jurisdiction of organizationincorporation, organization or formation;
(div) each of the representations and warranties made by any Loan Party of the Credit Parties set forth in or pursuant to the Loan Documents Section 4 hereof shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, Date (except to the extent expressly made as of such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been so be true and correct in all material respects on and as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer certificate, dated as of the Parent Amendment Effective Date of the Borrower, confirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to Administrative Agent;
(v) the Borrower certifying shall have paid all fees and other amounts due and payable to GS Bank, ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPMS”), Citigroup Global Markets Inc. (“CGMI”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“MLPFS”) as joint lead arrangers, bookrunners and co-syndication agent (in such capacities, the “Lead Arrangers”), Fifth Third Bank as documentation agent and the Administrative Agent in connection with this Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arrangers or the Administrative Agent in connection with this Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the matters extent that Borrower has received a reasonably detailed invoice for such costs and expenses prior to the Amendment Effective Date;
(vi) concurrently with the making of the Refinancing Tranche A Term Loans and making the Refinancing Revolving Commitments available hereunder, (a) the entire aggregate principal amount of the Existing Tranche A Term Loans and (b) all accrued interest, fees and other amounts (including any amounts due pursuant to Section 2.18 of the Credit Agreement) accrued prior to the Amendment Effective Date in connection therewith and in connection with the Existing Revolving Commitments shall have been paid (or, in the case of principal, deemed paid pursuant to this Amendment) in full and all Interest Periods in respect of thereof shall have been terminated; and
(vii) the Borrower shall have delivered a Funding Notice with respect to the Refinancing Tranche A Term Loans, notice of prepayment with respect to the Existing Tranche A Term Loans and notice of termination with respect to the Existing Revolving Commitments.
(b) The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the Amendment Effective Date shall not occur if each of the conditions set forth or referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have 5 has not been satisfied or waived in accordance with Section 10.05 of the Credit Agreement at or prior to 5:00 p.m., New York City time, on ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇ being understood that any such failure of the Amendment Effective Date to occur by such date hereof, by executing this Amendment, will not affect any rights or obligations of any Person under the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beexisting Credit Agreement).
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (such date, the “Third Fourth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving LendersAdministrative Agent):
a. The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (ai) the Borrower, (ii) the Administrative Agent and (or its counseliii) the Fourth Amendment Increasing Lenders;
b. The Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by the Parent Borroweralso received:
i. customary written opinions, each other Loan Party party hereto, in form and substance satisfactory to the Administrative Agent Agent, of (1) White & Case LLP and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b2) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) DG▇▇▇▇ ▇▇▇▇ & W▇, H▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇C▇▇▇▇▇ LLPP.C., in its capacity each as special Delaware counsel to the Loan Credit Parties, in ;
ii. a certificate of an Authorized Officer of each case, Credit Party dated as of the Third Fourth Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;certifying:
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) A. that attached thereto is a true and complete copy of its by-laws each Organizational Document of such Credit Party (and with respect to any articles of incorporation or operatingformation (or equivalent document), managementas applicable, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that certified to be true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority prior to the Fourth Amendment Effective Date by the appropriate Governmental Authority of the state or other jurisdiction of its jurisdiction incorporation or organization) certified by a secretary or other Authorized Officer of organizationsuch Credit Party to be true and correct as of the Fourth Amendment Effective Date (or solely with respect to the bylaws, operating agreement or equivalent governing document, as applicable, of such Credit Party, that such Credit Party has not modified its bylaws, operating agreement or equivalent governing document, as applicable, since the Third Amendment Effective Date);
B. that attached thereto is a true and complete copy of resolutions of such Credit Party authorizing the execution, delivery and performance of this Amendment and any other document delivered in connection herewith on the Fourth Amendment Effective Date;
(d1) as to the incumbency and specimen signature of each Authorized Officer executing this Amendment or (2) that the incumbency and specimen signature of each Authorized Officer has not changed since the Third Amendment Effective Date; and
D. that attached thereto is a good standing certificate, certificate of status or analogous certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation or organization of formation, each dated a recent date prior to the Fourth Amendment Effective Date;
iii. if requested by a Fourth Amendment Increasing Lender, the Administrative Agent and such Fourth Amendment Increasing Lender shall have received a duly-executed Revolving Credit Note or amended and restated Revolving Credit Note, as applicable;
iv. a certificate duly executed by an Authorized Officer of the Borrower on the Fourth Amendment Effective Date certifying that (a) no Default or Event of Default shall then exist or immediately after the Fourth Amendment Effective Date would exist and (b) each of the representations and warranties made by any Loan Party contained in or pursuant to Article VI of the Loan Documents Existing Credit Agreement shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, the Fourth Amendment Effective Date (except to the extent that any thereof expressly made as of an relate to a specific earlier date, in which case such representations and warranties shall have been so be true and correct as of such earlier date);
(i) all costsv. the results of a recent search, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel by a Person satisfactory to the Administrative Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the appropriate jurisdictions, together with copies of all such filings disclosed by such search; and
c. The Administrative Agent and other compensation the Fourth Amendment Increasing Lenders (or their affiliates, as applicable) shall have received payment of all fees required to be paid by the Parent Borrower in connection with this Amendment pursuant to the Administrative Agent fee letter, dated as of April 17, 2025, and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date reasonable and documented out-of-pocket expenses to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, reasonable detail at least three Business Days one business day prior to the Third Fourth Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may be.
Appears in 1 contract
Amendment Effective Date. This The obligations of the Lenders to make the Loans hereunder on or after the Amendment Effective Date shall not become effective as of until the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been is satisfied (or waived by the Third Amendment Revolving Lendersin accordance with Section 9.02):
(a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the The Administrative Agent (or its counsel) shall have received (including by telecopy or email transmission) (i) a counterpart of this Agreement from the Borrower and each Lender under the Original Credit Agreement immediately prior to the Amendment Effective Date (or, if any such Lender is a Non-Consenting Lender, its Replacement Lender in accordance with Section 2.16(c) of the Original Credit Agreement) and (ii) from each Loan Party party to each other relevant Loan Document (or has received on or after the Closing Date in the case of Loan Documents continuing pursuant to Section 1.07), a counterpart of such Loan Document signed on behalf of such Loan Party.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders as of the Amendment Effective Date and dated the Amendment Effective Date) of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Borrower and certain of the Loan Parties and (ii) local counsel in each jurisdiction in which a Loan Party is organized and the laws of which are not covered by the opinion referred to in (i) above, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions (excluding use of proceeds) and any other legal matters relating to the Loan Parties, this Agreement or the Transactions (excluding use of proceeds), including a certificate of each Loan Party, dated the Third Amendment Effective Date, Party substantially in the form of Exhibit C E, all in form and substance reasonably satisfactory to the Existing Credit AgreementAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, with appropriate insertions dated the Amendment Effective Date and attachmentssigned by the Chief Executive Officer, including without limitation a Vice President, a Financial Officer of the Borrower or any other executive officer of the Borrower who has specific knowledge of the Borrower’s financial matters and is satisfactory to the Administrative Agent, confirming that (xa) the certificate of incorporation (or equivalent) representations and warranties of each Loan Party certified by set forth in the relevant authority Loan Documents are true and correct as of the jurisdiction of organization of such Loan Party Amendment Effective Date and (yb) a true as of the Amendment Effect Date, no Default has occurred and complete copy of its by-laws or operating, management, partnership or similar agreement is continuing.
(or, in each case of clauses (xe) and (y) above, a certification that true and complete copies of such documents or agreements There shall have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the an executed Perfection Certificate.
(f) The Administrative Agent on shall have received a solvency certificate in the Third form of Exhibit I, dated the Amendment Effective Date and certified therein as being signed by the only amendments thereto as Chief Executive Officer, a Chief Financial Officer, a Chief Accounting Officer or any other executive officer of such date), the Borrower who has specific knowledge of the Borrower’s financial matters and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;is satisfactory to the Administrative Agent.
(dg) each of The Administrative Agent, the representations Lead Arrangers and warranties made by any Loan Party in the Lenders shall have received all fees and other amounts due and payable on or pursuant prior to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby)including, as if made on and as of such date, except to the extent expressly made as invoiced, reimbursement or payment of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and out‑of‑pocket expenses (including, without limitation, reasonable and documented including fees of legal fees and expenses of counsel to the Administrative Agent, the Lead Arrangers and the Lenders) and other compensation required to be reimbursed or paid by the Parent Borrower in connection hereunder.
(h) Since December 31, 2014, there shall have been no event that has had or would reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received the results of a recent Lien search with this respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.02 or discharged on or prior to the Amendment Effective Date pursuant to documentation satisfactory to the Administrative Agent.
(j) To the extent not received prior to the Amendment Effective Date, the Collateral Agent and the Third Amendment Revolving Lenders shall have been paid or received the certificates representing the certificated Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.
(k) The entry into and effectiveness of the Match Credit Agreement shall have been authorized to be deducted from occurred substantially concurrently with the proceeds effectiveness of this Agreement.
(l) Each Loan Party shall have provided the funding of any Revolving Loans borrowed on documentation and other information requested by the Third Amendment Effective Date to Lenders that is required by regulatory authorities under applicable “know your customer” and anti- money-laundering rules and regulations, including without limitation, the extent due and invoiced to the Parent Borrower (Act, in the each case of any such expenses, as requested at least three Business Days prior to the Third Amendment Effective Date.
(m) and (ii) the The Administrative Agent shall have receivedreceived an executed promissory note payable to the order of each Lender that requested such promissory note at least one Business Day prior to the Amendment Effective Date (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.
(n) The Borrower shall have paid to the Administrative Agent (i) for the ratable account of the Revolving Lenders immediately on or prior to the Amendment Effective Date, all accrued and unpaid interest on the Revolving Loans under the Original Credit Agreement and all accrued and unpaid fees payable pursuant to Sections 2.09(a) and (b)(i) of the Original Credit Agreement, (ii) for the account of the applicable Issuing Bank, all accrued and unpaid fronting fees payable pursuant to Sections 2.09(b)(ii) of the Original Credit Agreement and (iii) for its own account, all accrued and unpaid fees payable pursuant to Section 2.09(c) of the Original Credit Agreement, in each case to, but not including, the Amendment Effective Date.
(o) The Borrower shall have paid to the Administrative Agent for the account of each Existing RCF of the Revolving Lenders, as fee compensation for the making of such Lender’s Revolving Commitment, the Previously Accrued Amounts;
(f) the an amendment fee as separately agreed. The Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as notify the Borrower and the Lenders of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beconclusive and binding.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by in accordance with Section 10.01 of the Third Amendment Revolving LendersCredit Agreement):
(a) the Administrative Agent (or its counsel) shall have received (i) a counterpart signature page of this Amendment duly executed by the Parent Borrower, each other Loan Party party heretoCompany, the Administrative Agent Agent, each Incremental Lender and, solely with respect to the ▇▇▇▇▇ Replacement, each Consenting Lender and (ii) a Note executed by the Company in favor of each Third Incremental Lender requesting a Note at least three Business Days in advance of the Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below))Effective Date;
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from certificate signed by a Responsible Officer of the Company certifying (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to that the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as articles of formation or other comparable organizational documents of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan PartyCompany, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party the Company and (y) a true and complete copy of its by-laws the bylaws, operating agreement or operating, management, partnership comparable governing document of the Company either (A) has not been amended since the Closing Date or similar agreement (or, in each case of clauses (xB) and (y) above, a certification that true and complete copies of is attached as an exhibit to such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended (except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) that attached thereto are the written consents of the Company’s governing body authorizing the execution, delivery, performance of, this Amendment and such written consents have not been modified, rescinded or amended and are in full force and effect on the Amendment Effective Date without amendment, modification or rescission, and (iii) as to the incumbency and genuineness of the signature of the officers or other authorized signatories of the Company executing this Amendment;
(c) the Administrative Agent shall have received a good standing certificate as of a recent date for each Loan Party of the good standing of the Company under the laws of its jurisdiction of organization from its the relevant authority of its jurisdiction of organizationorganization (to the extent relevant and available in the jurisdiction of organization of the Company);
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
received (fi) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about from the Parent Borrower and the Guarantors that shall have been Company reasonably requested by such Third the Administrative Agent (on behalf of any Incremental Lender as of the Amendment Revolving Lender in writing Effective Date) at least 10 Business Days prior to five (5) days in advance of the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under Date, in connection with applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act and Act, in each case at least three (3) days prior to the CDD Rule Amendment Effective Date and (ii) at least three (3) days prior to the Amendment Effective Date, to the extent the Parent Borrower Company qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior a Beneficial Ownership Certification in relation to the Third Company;
(e) the representations and warranties set forth in Section 4 of this Amendment 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 as so qualified) on and as of the Amendment Effective Date, any Third Amendment Revolving Lender except to the extent that has requestedsuch representations and warranties specifically refer to an earlier date, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Datewhich case they shall be true and correct as of such earlier date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(iii) the Administrative Agent shall have received a certificate (in form and substance reasonably acceptable to the Administrative Agent), dated as of the Amendment Effective Date and signed by a Responsible Officer of the Parent Borrower Company, certifying as to such representations and warranties;
(f) the matters referred Administrative Agent shall have received a favorable legal opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and ▇▇▇▇ ▇▇▇▇▇, Esq., external and in-house counsel, respectively, to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereofCompany, by executing this Amendment, addressed to the Administrative Agent and each Incremental Lender party hereto, as to matters concerning the Third Company and this Amendment Revolving Lenders (including enforceability of this Amendment under New York law); and
(g) the Company shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory paid (i) to the Administrative Agent (or its applicable Affiliate) any fees due and required to be paid to the Third Administrative Agent (or its applicable Affiliate) on the Amendment Revolving LendersEffective Date pursuant to that certain Letter Agreement, dated as of October 23, 2023, among the case may beCompany and the Administrative Agent (or its applicable Affiliate) and (ii) subject to Section 10.04(a) of the Credit Agreement and to the extent invoiced at least one Business Day prior to the Amendment Effective Date, the reasonable out-of-pocket expenses of the Administrative Agent in connection with this Amendment, including the reasonable and documented out-of-pocket fees and expenses of one counsel for the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving LendersAdministrative Agent):
(a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings and the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below))2024 Incremental Term Loan Lender;
(b) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party, in substantially the form delivered on the Closing Date, (i) certifying that the articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (x) has not been amended since the prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the 2024 Incremental Term Loan Lenders on the Amendment Effective Date, a customary written opinion from of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to for Holdings, the Loan Parties Borrower and certain of the Subsidiary Guarantors and (ii) M▇▇▇▇▇Morris, N▇▇▇▇▇▇Nichols, Arsht & T▇▇▇▇▇▇ LLP, LLP in its capacity as special Delaware counsel to for Holdings, the Loan Parties, in each case, dated as of Borrower and the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organizationSubsidiary Guarantors;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to the Loan Parties certified as of a recent date by the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) appropriate Governmental Authority of the Parent Borrower certifying as to the matters set forth thereinstate of formation;
(ge) each Third Amendment Revolving Lender the Administrative Agent (or its counsel) shall have receivedreceived all documentation and other information, at least three two Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) in each case to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days so requested no less than ten Business Days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice );
(f) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Parent Administrative Agent (including pursuant to Section 9.03 of the Existing Credit Agreement and pursuant to Section 7 hereof) or the Amendment No. 12 Lead Arrangers pursuant to any engagement letter or fee letter with the Borrower on or before the Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (to the extent invoiced at least 10 days three Business Days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification);
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(ig) the Administrative Agent shall have received a certificate of a Responsible Officer Borrowing Request in respect of the Parent Borrower certifying as 2024 Incremental Term Loans to be made on the matters referred to Amendment Effective Date in clauses (d) and accordance with the requirements of the Existing Credit Agreement;
(h) the representations and warranties set forth in Article 3 of the Amended Credit Agreement shall be true and correct in all material respects on and as of the Amendment Effective Date with the same effect as though such representations and warranties had been made on the Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; and
(i) no Event of Default under Section 7.01(a), (f) or (g) of the Amended Credit Agreement shall exist immediately prior to or immediately after giving effect to the effectiveness of this Section 4Amendment. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by By executing this Amendment, the 2024 Incremental Term Loan Lenders and the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory have waived, all conditions hereto and to the Amendment Effective Date. The Administrative Agent or shall post a notice of effectiveness and occurrence of the Third Amendment Revolving LendersEffective Date, as which shall be conclusive. The Administrative Agent and the case may be2024 Incremental Term Loan Lenders acknowledge and agree that the Amendment Effective Date is December 17, 2024.
Appears in 1 contract
Sources: First Lien Credit Agreement (Lucky Strike Entertainment Corp)
Amendment Effective Date. This Amendment shall become effective as of the first date (such date, the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving LendersAdministrative Agent):
a. The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (ai) the Borrower, (ii) the Administrative Agent and (or its counseliii) the Lenders;
b. The Project Everest Acquisition Conditions shall have received a counterpart signature page of this Amendment duly executed by the Parent Borrowerbeen satisfied;
c. The Administrative Agent shall have also received:
i. customary written opinions, each other Loan Party party hereto, in form and substance satisfactory to the Administrative Agent Agent, of (1) White & Case LLP and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b2) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) DG▇▇▇▇ ▇▇▇▇ & W▇, H▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇C▇▇▇▇▇ LLPP.C., in its capacity each as special Delaware counsel to the Loan Credit Parties, in ;
ii. a certificate duly executed by an Authorized Officer of the Borrower as to the Solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Project Everest Acquisition;
iii. a certificate of an Authorized Officer of each case, Credit Party dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;certifying:
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) A. that attached thereto is a true and complete copy of its by-laws each Organizational Document of such Credit Party (and with respect to any articles of incorporation or operatingformation (or equivalent document), managementas applicable, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that certified to be true and complete copies as of such documents or agreements have been previously attached a recent date prior to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization) and certified therein as being the only amendments thereto as by a secretary or other Authorized Officer of such date), and (ii) a good standing certificate as of a recent date for each Loan Credit Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date;
B. that attached thereto is a true and complete copy of resolutions of such Credit Party authorizing the execution, immediately prior to delivery and immediately after giving effect to performance of this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and any other compensation required to be paid by the Parent Borrower document delivered in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed herewith on the Third Amendment Effective Date Date;
C. as to the extent due incumbency and invoiced specimen signature of each Authorized Officer executing this Amendment (together with a certificate of another officer as to the Parent Borrower (in incumbency and specimen signature of the case Authorized Officer executing the certificate pursuant to this Section 3(c)(iii)); and
D. that attached thereto is a good standing certificate, certificate of any status or analogous certificate from the applicable Governmental Authority of such expensesCredit Party’s jurisdiction of incorporation or organization of formation, at least three Business Days each dated a recent date prior to the Third Amendment Effective Date) and (ii) ;
iv. if requested by a Project Everest Incremental Revolving Lender, the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) and such Project Everest Incremental Revolving Lender shall have received a Solvency Certificate dated as duly-executed amended and restated Revolving Credit Note;
v. a certificate duly executed by an Authorized Officer of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth thereinin paragraph (b) of this Section 3;
(g) each vi. a Notice of Loan with respect to the Project Everest Incremental Revolving Loans and any other Revolving Loans to be borrowed on the Third Amendment Effective Date (which such other Revolving Lender Loans under the Existing Credit Agreement not to exceed $150,000,000);
vii. the results of a recent search, by a Person satisfactory to the Administrative Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the appropriate jurisdictions, together with copies of all such filings disclosed by such search;
viii. payoff and release documentation relating to all outstanding indebtedness of Enercon Technologies Ltd., a company organized under the laws of the State of Israel, required to be paid off pursuant to the terms of the Project Everest Acquisition Agreement, in form and substance reasonably satisfactory to the Administrative Agent; and
d. The Administrative Agent and the Project Everest Incremental Revolving Lenders (or their affiliates, as applicable) shall have receivedreceived payment of all fees required to be paid pursuant to the fee letter, dated as of the Second Amendment Effective Date, and reasonable and documented out-of-pocket expenses to the extent invoiced in reasonable detail at least three Business Days one business day prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may be.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third First Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders2018 Incremental Term Lenders and the Successor Administrative Agent):
(a) the The Successor Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by each Loan Party, the Parent BorrowerExisting Administrative Agent, the Successor Administrative Agent, each 2018 Incremental Term Lender and the Lenders constituting the Required Lenders.
(b) The Successor Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party (i) attaching the articles of formation or other or formation documents of such Loan Party and the bylaws, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, (ii) certifying that attached thereto are the resolutions of the Board of Directors (or other governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents as being in full force and effect without modification or amendment as of the First Amendment Effective Date, (iii) attaching signature and incumbency certificates of the Responsible Officers of such Loan Party executing Loan Documents to which it is a party heretoand (iv) attaching the good standing certificates described in clause (d) below.
(c) The Successor Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state of incorporation or formation, as the case may be and to the extent such concept exists.
(d) At least three (3) Business Days prior to the First Amendment Effective Date, the Successor Administrative Agent and the 2018 Incremental Term Lenders shall have received all documentation and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the First Amendment Effective Date and that the Successor Administrative Agent and the 2018 Incremental Term Lenders reasonably 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.
(e) The Successor Administrative Agent shall have received a written legal opinion reasonably satisfactory to it (addressed to the Existing Administrative Agent and each Third 2018 Incremental Term Lender party hereto and dated the First Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));Effective Date) of
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) D▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties Parties, in form and substance reasonably satisfactory to the Successor Administrative Agent;
(ii) MStikeman Elliot LLP, Alberta, British Columbia, Ontario and Quebec counsel to the Loan Parties;
(iii) ▇▇▇▇▇, N▇▇ ▇▇▇▇▇▇, Arsht New Brunswick, Nova Scotia and Newfoundland and Labrador counsel to the Loan Parties;
(iv) D’Arcy & TDeacon LLP, Manitoba counsel to the Loan Parties; and
(v) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, in its capacity as special Delaware Saskatchewan counsel to the Loan Parties, in each case.
(f) All fees required to be paid on the First Amendment Effective Date pursuant to that certain Commitment Letter, dated as of April 22, 2018 (the Third Amendment Effective Date and addressed to “Commitment Letter”), among the Administrative Agent Buyer, Citibank Global Markets Inc. and each Third Amendment Revolving Lender;
(c) the Administrative Agent (other financial institution which signs or its counsel) shall have received (i) has signed a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments joinder thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects Fee Letter (or in all respects if qualified by materialityas defined therein) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and reasonable out-of-pocket expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third First Amendment Effective Date pursuant to the Commitment Letter, to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three (3) Business Days prior to the Third First Amendment Effective DateDate (except as otherwise reasonably agreed by the Borrower), shall, upon the initial borrowings under the 2018 Incremental Term Loans (as applicable), have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the 2018 Incremental Term Loans (as applicable)).
(g) and (ii) the The Existing Administrative Agent shall have received, for the account of each Existing RCF LenderLender which executes this Amendment and submits to the Successor Administrative Agent a signature page hereto on or prior to 5:00 pm (New York time) on May 8, 2018, a consent fee (the Previously Accrued Amounts;“Consent Fee”) in an amount equal to 0.25% of the aggregate principal amount of the Initial Term Loans held by such Lender immediately prior to the First Amendment Effective Date; provided that the Consent Fee shall not be payable if the First Amendment Effective Date does not occur.
(fh) The First Amendment Transaction shall have been consummated, or substantially simultaneously with the Administrative Agent initial borrowings under the 2018 Incremental Term Loans, shall be consummated, in all material respects in accordance with the terms of the First Amendment Transaction Agreement (as applicable), after giving effect to any modifications, amendments, consents or its counselwaivers by you thereto, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the 2018 Incremental Term Lenders, unless consented to in writing by the 2018 Incremental Term Lenders (such consent not to be unreasonably withheld, delayed or conditioned).
(i) Since December 31, 2017 there has not been a Material Adverse Effect (as such term is defined in the First Amendment Transaction Agreement as in effect on April 22, 2018) and no fact, circumstance, condition, occurrence or event exists or has occurred which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined in the First Amendment Transaction Agreement as in effect on April 22, 2018).
(j) The Equity Contribution (as defined in the Commitment Letter) shall have received a Solvency Certificate dated as of been made, or substantially simultaneously with the Third initial borrowings under the 2018 Incremental Term Loans, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.
(k) The Collateral and Guarantee Requirement shall have been satisfied with respect to the Borrower and each other Loan Party on the First Amendment Effective Date from Date; provided that if, notwithstanding the chief financial officer (or other officer with reasonably equivalent responsibilities) use by the Borrower of commercially reasonable efforts to cause the Parent Borrower certifying as Collateral and Guarantee Requirement to be satisfied on the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third First Amendment Effective Date, all documentation the requirements thereof (other than (a) execution by the Borrower and each other Loan Party of joinders to the Guaranty, Security Agreement Supplements, Intellectual Property Security Agreements, supplements to the First Lien Intercreditor Agreement and other information about security agreements and documents (if any) required by the Parent Borrower and the Guarantors that shall have been Collateral Documents or, as reasonably requested by such Third Amendment Revolving Lender and in writing at least 10 Business Days prior form already specified or otherwise reasonably satisfactory to the Third Collateral Agent or the Successor Administrative Agent, (b) creation of and perfection of security interests in the certificated Equity Interests of the Borrower and its Subsidiaries to the extent received from the Company so long as the Buyer used commercially reasonable efforts to obtain such certificates on the First Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” (c) delivery of Uniform Commercial Code and anti-money laundering rules and regulations, including PPSA financing statements with respect to perfection of security interests in other assets of the PATRIOT Act Borrower and the CDD Rule and (iiother Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA, as applicable) to are not satisfied as of the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third First Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in the satisfaction of such requirements shall not be a written notice condition to the Parent Borrower at least 10 availability of the initial 2018 Incremental Term Loans on the First Amendment Effective Date (but shall be required to be satisfied as promptly as practicable after the First Amendment Effective Date and in any event within five (5) days prior of the First Amendment Effective Date or such later date as the Successor Administrative Agent may reasonably agree).
(l) The Refinancing (as defined in the Commitment Letter) shall be consummated (the “First Amendment Refinancing”) substantially simultaneously with the incurrence of the initial 2018 Incremental Term Loans and the consummation of the First Amendment Transaction.
(m) All Initial Term Loans owing to Existing Lenders as of the Third First Amendment Effective Date, a certification regarding beneficial ownership as required by together with all accrued and unpaid interest thereon and all other amounts payable under the Beneficial Ownership Regulation Existing Credit Agreement for the account of the Existing Lenders shall have been paid (a “Beneficial Ownership Certification”or shall be paid substantially simultaneously with the closing hereunder) in relation to and the Parent Borrower Successor Administrative Agent shall have received such Beneficial Ownership Certification;evidence reasonably satisfactory to it of the foregoing.
(hn) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the The Successor Administrative Agent shall have received a certificate of a Responsible Officer Loan Notice in respect of the Parent Borrower certifying as 2018 Incremental Term Loans to be made on the First Amendment Effective Date and in respect of the Initial Term Loans to be rolled on the First Amendment Effective Date in accordance with the requirements of the Amended Credit Agreement.
(o) The Successor Administrative Agent shall have received a solvency certificate dated the First Incremental Effective Date and after giving effect to the matters referred First Amendment Transaction, substantially in the form of Annex I to Exhibit E of the Commitment Letter (adjusted to reference the solvency of the Borrower and its Subsidiaries), of the Borrower’s chief financial officer.
(p) On and as of the First Amendment Effective Date (i) the First Amendment Specified Representations shall be true and correct in clauses all material respects (dexcept for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct after giving effect to such materiality qualifier) and (hii) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders Specified Acquisition Agreement Representations (as defined below) shall be deemed true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may besuch materiality qualifier).
Appears in 1 contract
Amendment Effective Date. This Refinancing Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):satisfied:
(a) the The Administrative Agent (or its counsel) shall have received (i) a counterpart signature page of this Refinancing Amendment duly executed by each of the Parent Borrower, each other Loan Party party hereto, Parties and the Administrative Agent and (ii) a Lender Addendum or a counterpart to this Refinancing Amendment, as applicable, executed and delivered by each Third Amendment Revolving New Term B Lender (in each case including and by way of Electronic Signatures the Required Lenders (as defined belowdetermined after giving effect to the New Term Loan B Loans and the refinancing of the Existing Term B Loans contemplated hereby));.
(b) The representations and warranties set forth in Section 4 of this Refinancing Amendment shall be true and correct in all respects on and as of the Amendment Effective Date, and the Administrative Agent (or its counsel) shall have received a customary certificate (in form and substance reasonably acceptable to the Administrative Agent), dated as of the Amendment Effective Date and signed by a Responsible Officer of the Lead Borrower, certifying as to such representations and warranties. #89446360v10
(c) The Administrative Agent shall have received an opinion from (i) Deach of ▇▇▇▇▇ ▇▇▇▇▇ & W▇LLP, U.S. counsel to the Loan Parties and ▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLPEsq., in its capacity as special Delaware corporate counsel to the Loan Partiesof Parent, in each case, dated as in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a Committed Loan Notice in respect of the Third Amendment Effective Date New Term B Loans.
(e) The Administrative Agent shall have received a notice of mandatory prepayment of Term Loans pursuant to Section 2.05(b)(v) of the Credit Agreement.
(f) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Lead Borrower designating the New Term B Loans as Refinancing Term Loans.
(g) The Administrative Agent shall have received such documents and addressed certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of execution, delivery and performance of this Refinancing Amendment, the performance of the Credit Agreement and each other applicable Loan Document, all in form and substance reasonably satisfactory to the Administrative Agent and each Third Amendment Revolving Lender;its counsel.
(ch) the Administrative Agent (or its counsel) The Borrowers shall have received paid all fees and amounts due and payable pursuant to this Refinancing Amendment and/or any letter agreements or fee letters by and between the Borrowers and the Lead Arrangers (i) a certificate of each Loan Partycollectively, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date“Engagement Letters”), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Dateincluding, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as evidenced by a written invoice, reimbursement or payment of an earlier date, in which case such representations documented and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and reasonable out-of-pocket expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Refinancing Amendment to and any other out-of-pocket expenses of the Administrative Agent and the Third Amendment Revolving Lenders Lead Arrangers required to be paid or reimbursed pursuant to the Credit Agreement or the Engagement Letters.
(i) The Administrative Agent and the Lead Arrangers shall have been paid or shall have been authorized received at least one (1) Business Day prior to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower Borrowers and the Guarantors that shall have as has been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 three (3) Business Days prior to the Third Amendment Effective Date by the Administrative Agent and the Lead Arrangers that such Third Amendment Revolving Lender they reasonably determines determine is required by United States bank regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and Act.
(j) The prepayment of (A) the CDD Rule Existing Term B Loans of the Non-Continuing Term B Lenders and (iiB) to the extent Non-Allocated Term Loans of the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 Continuing Term B Lenders, in each case, shall have been consummated or, substantially concurrently with the incurrence (or continuation) of the “Beneficial Ownership Regulation”)New Term B Loans, at least five days prior to shall be consummated, in each case with all accrued and unpaid interest on, and premiums and fees related to, the Third Existing Term B Loans to, but not including, the Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to . The Administrative Agent shall notify the Parent Borrower at least 10 days prior to Borrowers and the Third Amendment Effective Date, a certification regarding beneficial ownership as required by New Term B Lenders of the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders such notice shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may be.conclusive and binding. #89446360v10
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
Amendment Effective Date. This Amendment Agreement shall become effective as of on the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been be satisfied (or waived by in accordance with Section 10.01 of the Third Amendment Revolving LendersCredit Agreement):
(a) The Administrative Agent shall have executed this Agreement and shall have received from the Borrower, the Parent, each of the other Loan Parties, each of the Increasing Lenders, each of the other Existing Lenders, each of the L/C Issuers and each of the Swing Line Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile or its counselelectronic transmission) shall have received that such party has signed a counterpart signature page of this Amendment duly executed by the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));Agreement.
(b) The Administrative Agent shall have received:
(i) a certificate of a Responsible Officer of each Loan Party (or of the general partner or sole member of such Loan Party) certifying that (1) except as attached to such certificate, no changes have been effected since the Restatement Closing Date or, if later, since the date on which such Person became a Loan Party to the certificate or articles of limited partnership, formation or incorporation, as applicable, of such Loan Party or to the limited partnership agreement, operating agreement, bylaws or other governing document, as applicable, of such Loan Party and, in each case, that such document, in the form theretofore delivered to the Administrative Agent on the Restatement Closing Date or such later date, remains in force and effect on the Amendment Effective Date and (2) attached thereto is a true, correct and complete copy of resolutions duly adopted by the general partner, board of directors or other governing body, as applicable, of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement;
(ii) a certificate of a Responsible Officer of the General Partner, on behalf of the Parent, certifying that the representations and warranties in Section 3 hereof are true and correct on and as of the Amendment Effective Date;
(iii) a certificate signed by the chief financial officer of the General Partner or another Responsible Officer of the General Partner primarily responsible for the financial affairs of the Parent, on behalf of the Parent, certifying that on and as of [[5255041]] the Amendment Effective Date, after giving effect to the transactions described herein, the Parent and its counselSubsidiaries are Solvent on a consolidated basis; and
(iv) certificates as of a recent date setting forth the good standing of each Loan Party under the laws of its jurisdiction of organization.
(c) The Administrative Agent shall have received a customary an opinion from (i) Dof ▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, addressed to the Administrative Agent, the Arranger, each Lender and each L/C Issuer, in each case, dated case as to such customary matters regarding the transactions contemplated herein and in such form as the Administrative Agent may reasonably request.
(d) The Borrower shall have made any prepayment required by Section 2.15(c) of the Third Amendment Effective Date Revolving Credit Agreement.
(e) The Parent and addressed the Borrower shall have provided to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan PartyIncreasing Lenders, dated to the Third extent requested at least five Business Days prior to the Amendment Effective Date, substantially in the form of Exhibit C with respect to the Existing Credit AgreementParent, with appropriate insertions the Borrower and attachmentsthe other Loan Parties, including without limitation (xi) the certificate of incorporation (or equivalent) of each Loan Party certified documentation and other information requested by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under and any Increasing Lender in order to comply with the Existing Credit Agreement requirements of the Patriot Act, (ii) the documentation and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to other information requested by the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), in order to comply with all “know your customer” requirements and (iiiii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;all anti-money laundering documentation reasonably requested by the Administrative Agent or any Increasing Lender.
(df) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties The Administrative Agent shall have been so true and correct as received from the Borrower payment of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower to the Arranger or any Increasing Lender in connection with this Amendment to the Administrative Agent transactions contemplated hereby, as separately agreed by the Borrower and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;Arranger.
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the The Administrative Agent shall have received a certificate from the Borrower payment of a Responsible Officer all expenses (including Attorney Costs) required to be paid by the Borrower in connection with the Loan Documents and for which invoices have been presented at least one Business Day prior to the Amendment Effective Date. The Administrative Agent shall notify the Borrower, the Parent, the Lenders and the L/C Issuers of the Parent Borrower certifying as to occurrence of the matters referred to in clauses (d) Amendment Effective Date, and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders such notice shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may beconclusive and binding.
Appears in 1 contract
Sources: Incremental Facility and Amendment Agreement (Noble Midstream Partners LP)
Amendment Effective Date. This The Amendment Effective Date shall become effective as be the date on which all of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall set forth below have been satisfied (or waived by the Third Amendment Revolving Required Lenders):
(a1) the The Administrative Agent shall have received counterparts of this Amendment, executed by the Borrower and the Required Lenders.
(2) The Administrative Agent shall have received resolutions of the board of directors of the Borrower, certified by its Secretary or its counselAssistant Secretary, which authorize the execution, delivery and performance by the Borrower of this Amendment.
(3) The Administrative Agent shall have received a counterpart signature page certificate from an Authorized Officer of this Amendment duly executed by the Parent Borrower, each other Loan Party party hereto, the Administrative Agent and each Third Amendment Revolving Lender (in each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from Borrower stating that (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLPeach of SenCom and Sakon is primarily engaged in a similar line of business as the Borrower, in its capacity Titan Wireless, Inc. or Titan Systems Corporation as special New York counsel to of the Loan Parties and Closing Date; (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as all or substantially all of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially assets owned by SenCom are located in the form of Exhibit C to United States and SenCom is organized under the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority laws of the jurisdiction United States or a state thereof or the District of organization of such Loan Party Columbia; and (yiii) a true immediately before and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby)Acquisitions, as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on or would result therefrom (including under Section 8.1 of the Third Amendment Effective Date or after Credit Agreement).
(4) The Administrative Agent shall have received a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding the Acquisitions (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1 of the Credit Agreement) giving PRO FORMA effect in accordance with the Credit Agreement to the RCF Upsize consummation of the Acquisitions and evidencing compliance with the other transactions contemplated by this Amendment and covenants set forth in Section 8.4 of the Amended Credit Agreement; and.
(i5) the The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) a true and complete copy of each purchase agreement, and (hto the extent available) all other documents and instruments delivered in connection with the consummation of this Section 4. For purposes the Acquisitions and that are required to be delivered pursuant to the terms of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, relevant purchase agreement and the Administrative Agent shall be satisfied with all such agreements, documents and instruments and all amendments, waivers or other modifications of, or other forebearance to exercise any rights with respect to, any of the terms or provisions of such purchase agreements, documents and instruments and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or exhibits and schedules thereto. To the exent that certain documents and instruments that are required to be satisfied withdelivered pursuant to the terms of the relevant purchase agreement are not available on the Amendment Effective Date, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory the Borrower shall provide such documents and instruments to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may besoon as they become available.
Appears in 1 contract
Amendment Effective Date. This The Amendment Effective Date shall become effective as of be the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been condition set forth below is satisfied (or waived by the Third Amendment Revolving Lenders):waived:
(a) the a. The Administrative Agent (or its counsel) shall have received a counterpart signature page duly executed counterparts of this Amendment duly executed by from the Parent Borrower, each other Loan Party party hereto, the Administrative Agent Borrower and each Third Amendment Incremental Revolving Lender (in each case including by way of Electronic Signatures (as defined below));Commitment Lender.
(b) the b. The Administrative Agent (or its counsel) shall have received a customary opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as duly executed copies of the Third Affirmation of Guaranty, substantially in the form set forth in Exhibit I to this Amendment Effective Date and addressed to (the “Affirmation of Guaranty”), from each Guarantor.
c. The Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (i) either (x) a copy of the Organization Documents, including all amendments thereto, of the Borrower and each Guarantor, certified, if applicable, as of a recent date by the Secretary of State or other competent authority of the state of its organization, if applicable, or similar Governmental Authority, and a certificate as to the good standing or comparable certificate under applicable law (where relevant) of the Borrower and each Loan Party, dated Guarantor as of a recent date from the Third Amendment Effective Date, substantially in from such Secretary of State, similar Governmental Authority or other competent authority or (y) certification that the form Organization Documents of Exhibit C the Borrower and each Guarantor have not changed since the versions previously provided to the Existing Credit Agreement, with appropriate insertions Administrative Agent and attachments, including without limitation (ii) a certificate of the Secretary or Assistant Secretary or comparable officer under applicable law or director of the Borrower and each Guarantor dated the Amendment Effective Date and certifying (where relevant) (A) that either (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) attached thereto is a true and complete copy of the Organization Documents of the Borrower and each Guarantor as in effect on the Amendment Effective Date or (y) certifying that the Organization Documents of the Borrower and each Guarantor have not changed since the versions previously provided to the Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of the Borrower and each Guarantor authorizing the execution, delivery and performance of this Amendment and the Affirmation of Guaranty, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the Organization Documents of the Borrower and each Guarantor have not been amended since the date of the last amendment shown on such certificate, (D) as to (if applicable) the incumbency and specimen signature of each officer executing this Amendment on behalf of the Borrower and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or comparable officer under applicable law executing the certificate pursuant to clause (ii) above and (E) such other matters that are customarily included in a certificate of this nature in the jurisdiction of its by-laws incorporation or operatingorganization.
d. The representations and warranties of each Loan Party contained in Article V of the Credit Agreement, managementthis Amendment or any other Loan Document shall be true and correct in all respects or, partnership or similar agreement (orin the case of such representations and warranties which are not otherwise subject to a materiality qualification in accordance with its terms, shall be correct in all material respects, in each case on and as of clauses (x) and (y) abovethe Amendment Effective Date, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered except to the Administrative Agent under the Existing Credit Agreement and extent that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party specifically refer to an earlier date, in or pursuant to the Loan Documents which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;.
e. No Default shall exist before, or would result from, the incurrence of the Incremental Revolving Commitment on the Amendment Effective Date or any related Revolving Credit Loans contemplated hereby or the application of the proceeds thereof, or the consummation of the transactions contemplated herein.
f. The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, on the Amendment Effective Date, customary written opinions of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special counsel for the Borrower.
g. The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming (i) all costs, fees compliance with the conditions precedent set forth in paragraphs (d) and expenses (including, without limitation, reasonable e) above and documented legal fees and expenses of counsel (ii) that after giving Pro Forma Effect to the Administrative Agentincrease of the Revolving Credit Commitments contemplated in this Amendment (assuming that all such Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Revolving Commitments) and after giving effect to any Specified Transaction consummated in connection therewith and all other compensation appropriate Pro Forma Adjustments, the First Lien Net Leverage Ratio does not exceed 4:25:1.00.
h. The Borrower shall have paid (or caused to be paid) to each Incremental Revolving Commitment Lender (i) the full amount of all fees required to be paid by the Parent Borrower on or prior to the Amendment Effective Date pursuant to the Amendment No. 1 Fee Letter (as defined in connection with Section 2(b) of this Amendment to Amendment), and (ii) all reasonable and documented or invoiced out-of-pocket costs of the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent expenses due and invoiced to payable under the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent Agreement or the Third Amendment Revolving Lenders, as the case may beFee Letter.
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Amendment Effective Date. This Amendment shall become effective as of the date first date written above (the “Third Amendment Effective Date”) on which each ), upon the satisfaction of the following conditions shall have been satisfied (or waived by the Third Amendment Revolving Lenders):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender, each Borrower and PAA;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent (or its counsel) shall have received may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a counterpart signature page of Responsible Officer in connection with this Amendment duly executed by and the Parent Borrower, each other Loan Documents delivered pursuant to this § 3.1 to which such Loan Party party hereto, is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and General Partner is duly organized or formed, and that each Third Amendment Revolving Lender (Borrower is validly existing and in each case including good standing in its jurisdiction of organization, issued by way the appropriate authorities of Electronic Signatures (as defined below))such jurisdiction;
(biv) the Administrative Agent favorable opinions of (or its counselA) shall have received a customary opinion from (i) D▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowers and PAA, (B) Norton ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ US LLP, in its capacity as special Texas and New York counsel to the Loan Parties Borrowers and PAA, and (iiC) M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware Canadian counsel to the Loan PartiesPMCULC, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (or its counsel) shall have received (iv) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified signed by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or, in each case of clauses (x) and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower Company certifying as to the matters referred to in clauses (dA) and (h) of this Section 4. For purposes of determining whether that the conditions specified in this Section 4 Section 4.02(a), (b) and (d) of the Credit Agreement have been satisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the date hereofAmendment Effective Date, by executing this Amendmentthen determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) that there has been no event or circumstance since December 31, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the current PAA Debt Ratings; and
(vi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the Third validity against each Loan Party of this Amendment Revolving Lenders and each of the other Loan Documents to which it is a party shall have been obtained and shall be deemed in full force and effect.
(c) There shall not have occurred during the period from December 31, 2015 through and including the Amendment Effective Date any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have consented toa Material Adverse Effect, approved and there shall be no actions, suits, investigations, proceedings, claims or accepteddisputes pending or, to the knowledge of PAA, threatened in writing, at law, in equity, in arbitration or to be satisfied withbefore any Governmental Authority, each document or other matter required hereunder to be consented to or approved by or acceptable against PAA or satisfactory any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to the Administrative Agent or the Third Amendment Revolving Lenders, as the case may behave a Material Adverse Effect.
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Amendment Effective Date. This Amendment The obligations of the Lenders to make Term Loans pursuant to the amendment and restatement of this Agreement in the form hereof shall not become effective as of until the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been is satisfied (or waived by the Third Amendment Revolving Lendersin accordance with Section 9.02):
(a) the The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the Amendment Agreement 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 the Amendment duly executed by Agreement) that such party has signed a counterpart of the Parent BorrowerAmendment Agreement.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, each existence and, to the extent applicable, good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Party party heretoParties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and each Third its counsel.
(c) The Administrative Agent shall have received a certificate, dated the Amendment Revolving Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02.
(d) The Existing Restated Credit Agreement shall have been amended and restated as the Restated Credit Agreement.
(e) The Administrative Agent shall have received all interest, fees and other amounts due and payable or accrued on or prior to the Amendment Effective Date under this Agreement or the Existing Parent Credit Agreement, including, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under this Agreement or any other Loan Document.
(f) Each Tranche B Lender (in each case including by way of Electronic Signatures (as defined below));
(b) in the Administrative Agent (or its counselExisting Parent Credit Agreement) shall have received (or, substantially simultaneously with the funding of the Term Loans on the Amendment Effective Date, shall receive) payment in full of the principal of and interest accrued on each Tranche B Term Loan held by it and all other amounts owing to it or accrued for its account under the Existing Parent Credit Agreement, and all interest, fees and other amounts accrued or owing under each of the Existing Parent Credit Agreement and the Existing Restated Credit Agreement, including to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower thereunder, shall have been (or, substantially simultaneously with the funding of the Term Loans on the Amendment Effective Date, shall be) paid in full.
(g) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the execution of this Agreement shall have been obtained.
(h) The Administrative Agent shall have received a customary favorable written opinion from (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of each of (i) DDavis Polk & Wardwell, New York counsel for the Borrower and the Subsidiaries, substan▇▇▇▇▇▇ ▇▇ the ▇▇▇▇ ▇▇ Exhibit D-1, (ii) Jones, Walker, Waechter, Poitevant, Carrère & Denègre, L.L.P., U.S. counsel for the Borrower and the ▇▇▇▇▇▇▇▇ries, substantially in ▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLPm of Exhibit D-2, and (iii) local counsel in its capacity each jurisdiction where a Subsidiary Guarantor, a Subsidiary Grantor (as special New York counsel defined in the Collateral Agreement) or a Permitted Pledgee the Equity Interests in which are being pledged pursuant to the Loan Parties and (ii) M▇▇▇▇▇, N▇▇▇▇▇▇, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(c) the Administrative Agent (Collateral Agreement or its counsel) shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (orany Foreign Pledge Agreement is organized, in each case of clauses (x) in form and (y) above, a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered substance reasonably satisfactory to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Third Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(d) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, immediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;Agent.
(i) all costs, fees The Collateral and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders Guarantee Requirement shall have been paid or shall have been authorized to be deducted from satisfied. The Loans made, the application of the proceeds thereof and the termination of existing Indebtedness under the funding of any Revolving Loans borrowed Existing Parent Credit Agreement on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining whether the conditions specified in this Section 4 have been satisfied on the date hereof, by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to occurred as set forth in the Amendment Agreement. The Administrative Agent or shall promptly notify the Third Borrower and the Lenders of the Amendment Revolving LendersEffective Date, as the case may beand such notice shall be conclusive and binding.
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Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)