Amendment Effectiveness. This Agreement, and the obligation of the New Lenders to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving Loans, as applicable, shall become effective on July 8, 2014 (the “Effective Date”), upon the satisfaction of the following conditions: (a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender and (vi) the Administrative Agent, either (x) counterparts of this Agreement signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement; (b) The Administrative Agent shall have received: (i) a copy of the Organization Documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Document; (c) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement; (d) On the Effective Date, the Administrative Agent shall have received (x) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement; (e) On or prior to the Effective Date, the Administrative Agent shall have received: (i) the Perfection Certificate duly executed on behalf of each Loan Party; (ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent); (iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral; (iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and (v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents; (f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6; (g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions; (h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date; (i) The Administrative Agent shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the projections referred to in Section 5.05(d) of the Amended and Restated Credit Agreement; (j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Patriot Act; (k) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately prior to the Effective Date; (l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and (m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Lenders and the other Lenders of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Amendment Effectiveness. This Agreement, and the obligation The effectiveness of the New Lenders this Amendment shall be subject to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving Loans, as applicable, shall become effective on July 8, 2014 (the “Effective Date”), upon the satisfaction of the following conditionsconditions precedent on or prior to July 1, 2013:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender and (vi) the Administrative Agent, either (x) counterparts the Swing Line Lender, the L/C Issuer, the Required Lenders and each Lender whose name is listed in the first column of the table in Exhibit A a duly executed and delivered counterpart of this Agreement Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;party.
(b) The Administrative Agent shall have received: (i) a copy received favorable legal opinions of the Organization Documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Document;
(c) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement;
(d) On the Effective Date, the Administrative Agent shall have received (x) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, general counsel for the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the BorrowerCompany, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated Lender party to this Amendment on the Amendment Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;Date.
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;
(ic) The Administrative Agent shall have received (i) copies of the Audited Financial StatementsOrganizational Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Amendment Effective Date, (ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Unaudited Financial Statements Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party and (iii) such documents and certifications as the projections referred Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and that the Company and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation.
(d) The representations and warranties set forth in Article VI of the Credit Agreement, in Section 5.05(d) 4 hereof and in any other Loan Document or which are contained in any document furnished at any time under or in connection herewith or therewith shall be true and correct as of the Amended Amendment Effective Date, except to the extent that such representations and Restated Credit Agreement;warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Responsible Officer of each Loan Party, confirming the accuracy thereof.
(je) The Administrative Agent shall have received for its own account or the account of each Lender entitled thereto (i) all documentation fees and other information about expenses in connection with this Amendment agreed to prior to the Borrower Amendment Effective Date, (ii) all amounts due and payable to each Replaced Lender and each Decreasing Lender on or prior to the Guarantors that Amendment Effective Date pursuant to the Loan Documents and this Amendment and (iii) all accrued and unpaid interest to the Amendment Effective Date, and all such amounts shall have been reasonably requested received by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Patriot Act;
(k) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended LoansAgent, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving LendersSwing Line Lender, the L/C Issuer Issuer, each Lender and the Swing Line Lender pursuant to the Credit Agreement; each Replaced Lender, in each case for its own account. The documents date on which such conditions have been satisfied (or waived) is referred to in this Section 5 shall be delivered to herein as the Administrative Agent no later than the “Amendment Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Lenders and the other Lenders of the Effective Date and such notice shall be conclusive and binding”.
Appears in 1 contract
Amendment Effectiveness. This AgreementAmendment, and the obligation of the New Term Lenders to fund Amended New Term Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended New Term A Loans or Amended Revolving Loans, as applicable, shall become effective on July 8April 9, 2014 (the “Third Amendment and Restatement Effective Date”), upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdingseach Subsidiary Guarantor, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender and (viiv) the Administrative Agent, either (x) counterparts of this Agreement Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;Amendment.
(b) The Subject to Section 6(b) herein, the Administrative Agent shall have received: (i) a copy received evidence, including UCC, tax and judgment lien searches from the jurisdiction of formation and jurisdiction of the Organization Documents, including all amendments thereto, chief executive office of each Loan Credit Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate that none of the Secretary or Assistant Secretary of Collateral is subject to any Liens (in each Loan Party dated case other than Permitted Liens); provided that title searches and other requirements with respect to each real property encumbered by a Mortgage shall be delivered following the Third Amendment and Restatement Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (iiSection 6(b) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Document;herein.
(c) The Administrative Agent shall have received a duly executed certificate of an appropriate officer of each Credit Party, certifying (i) that the copies of such Credit Party’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Third Amendment and Restatement Effective Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the appropriate Governmental Authority of the jurisdiction of such Credit Party’s organization or formation and attached to such officer’s certificate, dated are true, correct and complete and in full force and effect as of the Third Amendment and Restatement Effective Date, (ii) that the copies of such Credit Party’s resolutions approving and adopting the Financing Documents to which it is party, the transactions contemplated herein, and authorizing the execution and delivery thereof, as attached to such officer’s certificate, are true, correct and complete copies and in full force and effect as of the Third Amendment and Restatement Effective Date and signed by a Responsible Officer (iii) as to incumbency certificates identifying the officers of such Credit Party that are authorized to execute the Borrower, confirming compliance Amendment and to execute and act on such Credit Party’s behalf in connection with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement;Amendment.
(d) On the Effective DateSubject to Section 6(c) herein, the Administrative Agent shall have received certificates of good standing or the equivalent (if any) for each Credit Party from such Credit Party’s jurisdiction of organization or formation, in each case certified as of a recent date by the appropriate Governmental Authority.
(e) Immediately before and after giving effect to the borrowing of the New Term Loans, the Existing Term Loan Refinancing, the effectiveness of this Amendment, the ABL Repayment, the effectiveness of the ABL Facility, and the payment of fees and expenses related to the foregoing (the “Third Amendment and Restatement Transactions”) (i) no Event of Default shall have occurred and be continuing and (ii) the representations and warranties (x) of each Credit Party set forth in the Financing Documents and (y) in Section 7 of this Amendment shall be true and correct in all material respects as of the Third Amendment and Restatement Effective Date (it being understood that, to the extent that any such representation and warranty specifically refers to an opinion earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(f) The Administrative Agent shall have received customary duly executed opinions of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies Co-General Counsel and Corporate Secretary of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statementsBorrower and (iii) ▇▇▇▇▇▇▇▇, notices ▇▇▇▇▇▇ & Finger P.A., in each case dated as of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name Third Amendment and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Restatement Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);.
(iiig) searches of ownership of intellectual The Administrative Agent shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and if such real property is located in the appropriate governmental offices a special flood hazard area, (i) a notice about special flood hazard area status and such patent, trademark and/or copyright filings as may be requested flood disaster assistance duly executed by the Collateral Agent to Borrower and (ii) certificates of insurance evidencing the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(ivinsurance required by Section 5.03(b) all of the Pledged Collateral (to the extent not previously delivered Third Amended and Restated Credit Agreement in form and substance satisfactory to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;.
(h) The Administrative Agent shall have received from be reasonably satisfied that on the Borrower a closing fee payable in Dollars Third Amendment and Restatement Effective Date (provided that x) the closing fee for Existing Term Loan Refinancing shall be consummated substantially simultaneously with the funding of the New Term B Lenders may be payable in the form of original issue discount)Loans, (iy) for the account of each New Revolving Lender, equal to 0.35% ABL Repayment shall have been consummated substantially simultaneously with the funding of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iiiz) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;ABL Facility has been deemed effective.
(i) The Administrative Agent shall have received (i) a certificate of an appropriate officer of the Audited Financial Statements, (ii) Borrower certifying that the Unaudited Financial Statements and (iii) the projections referred to conditions set forth in Section 5.05(d5(e) of the Amended and Restated Credit Agreement;have been satisfied.
(j) The Administrative Agent and the Third Amendment and Restatement Joint Lead Arrangers and Bookrunners shall have received on or prior to the date hereof, in immediately available funds, payment or reimbursement (or the Borrower shall have made arrangements reasonably satisfactory to the Administrative Agent for such payment or reimbursement) of all documentation costs, fees, out-of-pocket expenses, compensation and other information about amounts then due and payable in connection with this Amendment (including pursuant to a separately agreed engagement letter among the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Third Amendment and Restatement Joint Lead Arrangers in writing at least 5 days prior and Bookrunners), including all reasonable invoiced fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Effective Date and that the Administrative Agent and the Third Amendment and Restatement Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsBookrunners, including without limitation to the U.S. Patriot Act;
extent invoiced at least one (k1) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately Day prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowingdate hereof. The Administrative Agent shall notify the Borrower, the New Term Lenders and the other Lenders of the Third Amendment and Restatement Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Amendment Effectiveness. This Agreement, and the obligation of the New Lenders to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving Loans, as applicable, Amendment shall become effective on July 8August 21, 2014 2013 (the “Effective Restatement Date”), upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iviii) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender the Required Consenting Lenders and (viiv) the Administrative Agent, either (x) counterparts of this Agreement Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;Amendment.
(b) The Administrative Agent shall have received: received a duly executed certificate of an appropriate officer of each Credit Party, certifying (i) a copy that the copies of such Credit Party’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Organization Documents, including all amendments thereto, of each Loan Party, Restatement Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the Secretary of State or other applicable appropriate Governmental Authority of its respective the jurisdiction of organization; such Credit Party’s organization or formation and attached to such officer’s certificate, are true, correct and complete and in full force and effect as of the Restatement Date, (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents copies of such Loan Party have not been amended since Credit Party’s resolutions approving and adopting the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Financing Documents to which it is to be a party and, in the case of the Borrowerparty, the borrowings hereundertransactions contemplated herein, and that authorizing the execution and delivery thereof, as attached to such resolutions have not been modifiedofficer’s certificate, rescinded or amended are true, correct and are complete copies and in full force and effect; effect as of the Restatement Date and (Diii) as to incumbency certificates identifying the incumbency officers of such Credit Party that are authorized to execute the Amendment and specimen signature of each officer executing any Loan Document;to execute and act on such Credit Party’s behalf in connection with the Amendment.
(c) The Administrative Agent shall have received certificates of good standing or the equivalent (if any) for each Credit Party from such Credit Party’s jurisdiction of organization or formation, in each case certified as of a certificate, dated recent date by the Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement;appropriate Governmental Authority.
(d) On Immediately before and after giving effect to this Amendment (i) no Event of Default shall have occurred and be continuing and (ii) the Effective Daterepresentations and warranties (x) of each Credit Party set forth in the Financing Documents and (y) in Section 8 of this Amendment shall be true and correct in all material respects as of the Restatement Date (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(e) The Administrative Agent shall have received customary duly executed opinions of (xi) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to (ii) Co-General Counsel and Corporate Secretary of the Loan PartiesBorrower and (iii) ▇▇▇▇▇▇▇▇, addressed ▇▇▇▇▇▇ & Finger P.A., in each case dated as of the Restatement Date and reasonably satisfactory to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;.
(ef) On or prior to the Effective Date, the The Administrative Agent shall have received:
received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and if such real property is located in a special flood hazard area, (i) the Perfection Certificate a notice about special flood hazard area status and flood disaster assistance duly executed on behalf of each Loan Party;
by the Borrower and (ii) copies certificates of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to insurance evidencing the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested insurance required by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 5.03(b) of the Amended and Restated Credit Agreement or for which in form and substance satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Lawa certificate of an appropriate officer of the Borrower certifying that the conditions set forth in Section 6(d) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been satisfied.
(h) The Administrative Agent and the Amendment and Restatement Lead Arranger and Bookrunner shall have received on or contemporaneously will be released prior to the date hereof, in immediately available funds, payment or terminated reimbursement (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral Borrower shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance have made arrangements reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(vfor such payment or reimbursement) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documentscosts, includingfees, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment (including pursuant to a separately agreed engagement letter among the Borrower and the Amendment and Restatement Lead Arranger and Bookrunner), including all reasonable invoiced fees and expenses required of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to be paid on the Effective Date as contemplated in Administrative Agent and the Engagement LetterAmendment and Restatement Lead Arranger and Bookrunner, to the extent invoiced at least three one (31) Business Days Day prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;date hereof.
(i) The Administrative Agent shall have received (i) payment of consent fees by the Audited Financial Statements, (ii) Borrower for the Unaudited Financial Statements and (iii) the projections referred ratable benefit of each Consenting Lender equal to in Section 5.05(d) 0.25% of the Amended and Restated Credit Agreement;outstanding principal amount of Commitments (as set forth on Schedule 2.01 hereto) held by each Consenting Lender.
(j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsevidence, including without limitation UCC, tax and judgment lien searches from the U.S. Patriot Act;
(k) The Administrative Agent shall have received a Notice jurisdiction of Borrowing no later than 1:00 p.m. two Business Days immediately prior to the Effective Date;
(l) Substantially concurrently with the incurrence formation and jurisdiction of the Amended Loanschief executive office of each Credit Party, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer that none of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior Collateral is subject to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowingany Liens (in each case other than Permitted Liens. The Administrative Agent shall notify the Borrower, the New Consenting Lenders and the other Lenders of the Effective Restatement Date and such notice shall be conclusive and binding.
Appears in 1 contract
Amendment Effectiveness. This Agreement, and the obligation of the New Lenders to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving Loans, as applicable, Amendment shall become effective on July 8August 21, 2014 2013 (the “Effective Second Restatement Date”), upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iviii) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender the Required Consenting Lenders and (viiv) the Administrative Agent, either (x) counterparts of this Agreement Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;Amendment.
(b) The Administrative Agent shall have received: received a duly executed certificate of an appropriate officer of each Credit Party, certifying (i) a copy that the copies of such Credit Party’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Organization Documents, including all amendments thereto, of each Loan Party, Second Restatement Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the Secretary of State or other applicable appropriate Governmental Authority of its respective the jurisdiction of organization; such Credit Party’s organization or formation and attached to such officer’s certificate, are true, correct and complete and in full force and effect as of the Second Restatement Date, (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents copies of such Loan Party have not been amended since Credit Party’s resolutions approving and adopting the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Financing Documents to which it is to be a party and, in the case of the Borrowerparty, the borrowings hereundertransactions contemplated herein, and that authorizing the execution and delivery thereof, as attached to such resolutions have not been modifiedofficer’s certificate, rescinded or amended are true, correct and are complete copies and in full force and effect; effect as of the Second Restatement Date and (Diii) as to incumbency certificates identifying the incumbency officers of such Credit Party that are authorized to execute the Amendment and specimen signature of each officer executing any Loan Document;to execute and act on such Credit Party’s behalf in connection with the Amendment.
(c) The Administrative Agent shall have received certificates of good standing or the equivalent (if any) for each Credit Party from such Credit Party’s jurisdiction of organization or formation, in each case certified as of a certificate, dated recent date by the Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement;appropriate Governmental Authority.
(d) On Immediately before and after giving effect to this Amendment (i) no Event of Default shall have occurred and be continuing and (ii) the Effective Daterepresentations and warranties (x) of each Credit Party set forth in the Financing Documents and (y) in Section 5 of this Amendment shall be true and correct in all material respects as of the Second Restatement Date (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(e) The Administrative Agent shall have received customary duly executed opinions of (xi) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name Co-General Counsel and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 Corporate Secretary of the Amended Borrower and Restated Credit Agreement or for which (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A., in each case dated as of the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated Second Restatement Date and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);.
(iiif) searches of ownership of intellectual The Administrative Agent shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and if such real property is located in the appropriate governmental offices a special flood hazard area, (i) a notice about special flood hazard area status and such patent, trademark and/or copyright filings as may be requested flood disaster assistance duly executed by the Collateral Agent to Borrower and (ii) certificates of insurance evidencing the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(ivinsurance required by Section 5.03(b) all of the Pledged Collateral (to the extent not previously delivered Second Amended and Restated Credit Agreement in form and substance satisfactory to the Administrative Agent).
(g) The Administrative Agent shall have received a certificate of an appropriate officer of the Borrower certifying that the conditions set forth in Section 4(d) have been satisfied.
(h) The Administrative Agent and the Second Amendment and Restatement Lead Arranger and Bookrunner shall have received on or prior to the date hereof, which Pledged Collateral in immediately available funds, payment or reimbursement (or the Borrower shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance have made arrangements reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(vfor such payment or reimbursement) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documentscosts, includingfees, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment (including pursuant to a separately agreed engagement letter among the Borrower and the Second Amendment and Restatement Lead Arranger and Bookrunner), including all reasonable invoiced fees and expenses required of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to be paid on the Effective Date as contemplated in Administrative Agent and the Engagement LetterSecond Amendment and Restatement Lead Arranger and Bookrunner, to the extent invoiced at least three one (31) Business Days Day prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;date hereof.
(i) The Administrative Agent shall have received (i) payment of consent fees by the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the projections referred Borrower equal to in Section 5.05(d) 0.25% of the Amended and Restated Credit Agreement;
(j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested outstanding principal amount of Term Loans held by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Patriot Act;
(k) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Consenting Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Consenting Lenders and the other Lenders of the Effective Second Restatement Date and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Second Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Amendment Effectiveness. This Agreement, and the obligation The effectiveness of the New Amendment shall be subject to the satisfaction (or waiver by the Lenders party hereto), prior to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving LoansMay 3, as applicable2013, shall become effective on July 8, 2014 of the following conditions (the first Business Day on which all conditions are so satisfied or waived, the “Amendment Effective Date”), upon the satisfaction of the following conditions:):
(a) The the Administrative Agent (or its counsel) shall have received from counterparts of this Amendment that, when taken together, bear the signatures of (iA) the Borrower, (ii) HoldingsHoldings and the Subsidiary Guarantors, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender and (viB) the Administrative Agent, either (xC) counterparts of this the Required Lenders and (D) each other Lender party to the Credit Agreement signed on behalf the Amendment Effective Date (it being understood that the delivery of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreementcounterpart shall be irrevocable);
(b) The the Administrative Agent shall have received: received (i) a copy of the Organization Documentscertificate, articles of incorporation or other constitutive document, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of the state of its respective jurisdiction of organization; (ii) , and a certificate as to the good standing of each Loan Party, Party as of a recent date, from the such Secretary of State (or, to the extent that since February 14, 2013, such constitutive documents of any Loan Party have not been modified or other applicable authority amended, certification by the Secretary or Assistant Secretary of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do businessthat effect); and (iiiii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Amendment Effective Date and certifying certifying, to the extent applicable to such Loan Party, (A) that attached thereto is a true and complete copy of the Organization Documents by-laws of such Loan Party as in effect on the Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below (or that since February 14, 2013, such by-laws have not been modified or amended), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers, as applicable, of such Loan Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate, articles of incorporation, operating agreement or other constitutive document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (iii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan DocumentDocument or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders, the Issuing Bank or the Administrative Agent may reasonably request;
(c) The the representations and warranties set forth in Section 4 above shall be true and correct as of the Amendment Effective Date;
(d) the Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Responsible Financial Officer of the Borrower, confirming compliance with certifying that as of the conditions precedent Amendment Effective Date that the condition set forth in Section 4.02(b) and Section 4.02(cparagraph (c) of the Amended and Restated Credit Agreementthis Section 5 is satisfied;
(de) On each Lender that shall have consented to this Amendment on or prior to the Amendment Effective DateDate shall receive, prior to or simultaneously with the effectiveness of the Amendment, payment of a consent fee equal to 1.00% of the principal amount of Loans or Revolving Credit Commitments held by such Lender; and
(f) the Administrative Agent shall have received payment of all fees and other amounts due and payable on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (x) an opinion including the fees, disbursements and other charges of ▇▇▇▇▇▇▇▇ Cravath, Swaine & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be reimbursed or paid on the Effective Date as contemplated in the Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from by the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;
(i) The Administrative Agent shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the projections referred to in Section 5.05(d) of the Amended and Restated Credit Agreement;
(j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Patriot Act;
(k) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Lenders and the other Lenders of the Effective Date and such notice shall be conclusive and bindingLoan Document.
Appears in 1 contract
Amendment Effectiveness. This Agreement, and the obligation of the New Lenders to fund Amended Loans or convert Existing Term A Loans or Existing Revolving B Loans into Amended Term A B Loans or Amended Revolving Loans, as applicable, shall become effective on July 8February 2, 2014 2018 (the “Effective Date”), upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (vvi) each New Revolving Lender and (vivii) the Administrative Agent, either (x) counterparts of this Agreement signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;
(b) The Administrative Agent shall have received: (i) a copy of the Organization Documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, ; (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Document;
(c) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) (in the case of such Section 4.02(b), as of the Effective Date) and Section 4.02(c) of the Amended and Restated Credit AgreementAgreement (in the case of such 4.02(c), immediately prior to, and after giving effect to the Effective Date);
(d) On the Effective Date, the Administrative Agent shall have received (x) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement LetterLetter (or otherwise agreed in writing), to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.350.25% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date, (ii) for the account of each New Revolving Lender, equal to 0.25% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.500.25% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;
(i) The Administrative Agent shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iiiii) the projections referred to in Section 5.05(d) of the Amended and Restated Credit Agreement;
(j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint Lead Arrangers in writing at least 5 days prior to the Effective Date and that the Administrative Agent and the Joint Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Patriot Act;
(k) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 2:00 p.m. two Business Days immediately prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Loans, any Existing Term A B Loans not being converted into Amended Term B Loans and any Existing Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; . The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Lenders and the other Lenders of the Effective Date and such notice shall be conclusive and binding.
Appears in 1 contract
Amendment Effectiveness. This Agreement, The effectiveness of the amendments to the Credit Agreement contemplated hereby and the obligation obligations of each 2018 Term Lender to make any 2018 Term Loans hereunder shall be subject to the satisfaction (or waiver by each 2018 Term Lender party hereto), on or prior to March 29, 2018, of the New Lenders to fund Amended Loans or convert Existing Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving Loans, as applicable, shall become effective on July 8, 2014 following conditions (the first Business Day on which all conditions are so satisfied or waived and the 2018 Term Loans are made, the “Amendment No. 4 Effective Date”), upon the satisfaction of the following conditions:):
(a) The the Administrative Agent (or its counsel) shall have received from counterparts of this Amendment that, when taken together, bear the signatures of (i) the BorrowerBorrowers, Holdings and the Subsidiary Guarantors (other than PPD Services, Inc.), (ii) Holdings, the Administrative Agent and (iii) each Subsidiary Guarantor, (iv) each New 2018 Term A Lender, (v) each New Term B Lender, (v) each New Revolving Lender and (vi) the Administrative Agent, either (x) counterparts of this Agreement signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;
(b) The the Administrative Agent shall have received: (i) a copy received such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Holdings, the Organization DocumentsBorrowers and each Subsidiary Guarantor as the Administrative Agent may reasonably require evidencing the identity, including all amendments thereto, authority and capacity of each Loan Party, certified Responsible Officer thereof authorized to act as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state Responsible Officer in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Documentconnection with this Amendment;
(c) The the Administrative Agent shall have received such documents and certifications (including Organization Documents (or certifications of a Responsible Officer that there have been no changes to the Organizational Documents since the Amendment No. 3 Effective Date, as applicable) and, to the extent available under applicable local law, good standing certificates) as the Administrative Agent may reasonably require to evidence that Holdings, the Borrowers and each Subsidiary Guarantor is duly organized or formed, and that each of them is validly existing, and, to the extent available under local law, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(d) the Administrative Agent shall have received a certificate, dated Committed Loan Notice relating to the Effective Date and signed by a Responsible Officer incurrence of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement2018 Term Loans;
(de) On the Effective Date, the Administrative Agent shall have received a solvency certificate executed by the chief financial officer or similar officer, director, manager or authorized signatory of the Parent Borrower (xafter giving effect to the repayment of the 2017 Term Loans and the funding of the 2018 Term Loans to the Borrowers);
(f) the Administrative Agent shall have received an opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York, Delaware, Texas and California counsel to the Loan Parties, addressed and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ counsel to the Administrative Agent, the Collateral Agent and each 2018 Term Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement and (y) an opinion of the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(e) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees subject to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement LetterSection 6 of this Amendment, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash all actions or will be paid on the Effective Date out of the initial Credit Extensions;
(h) The Administrative Agent shall have received from the Borrower a closing fee payable in Dollars (provided that the closing fee for the New Term B Lenders may be payable in the form of original issue discount), (i) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;
(i) The Administrative Agent shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the projections referred to in Section 5.05(d) of the Amended and Restated Credit Agreement;
(j) The Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors that shall have been documents reasonably requested by the Administrative Agent that are necessary to establish or re-affirm that the Joint Lead Arrangers Collateral Agent will have a perfected first priority security interest (subject to Liens permitted under Section 7.02 of the Credit Agreement) in writing at least 5 days prior the Collateral to secure the Effective Date 2018 Term Loans shall have been taken or executed and that delivered (including, if so requested, deeds of confirmation, amendments and/or supplements to Collateral Documents);
(h) the Administrative Agent and its affiliates shall have received from the Joint Lead Arrangers reasonably determine is Borrowers (or shall be satisfied that it will receive substantially concurrently with the effectiveness of this Amendment) immediately available funds in an amount sufficient to consummate the Loan Repayment and pay all other fees and reimburse all expenses separately agreed in writing by the Borrowers and any 2018 Term Lender or required by regulatory authorities under applicable “know your customer” Section 10.04 of the Credit Agreement or by any other Loan Document to be paid by the Borrowers in connection with this Amendment and anti-money laundering rules and regulationsthe transactions contemplated hereby (to the extent, including without limitation in the U.S. Patriot Actcase of reimbursement of expenses, invoiced in reasonable detail on or prior to the date hereof);
(ki) The the representations and warranties set forth in Section 4 above shall be true and correct, and no Default or Event of Default shall exist before or after giving effect to the transactions contemplated hereby (and the Administrative Agent shall have received a Notice certification by a Responsible Officer of Borrowing no later than 1:00 p.m. two Business Days immediately prior to each Borrower that the Effective Date;
condition specified in this clause (li) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreementhave been satisfied); and
(mj) The Borrower substantially concurrently with the effectiveness of this Amendment, the 2018 Term Loans shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowing. The Administrative Agent shall notify the Borrower, the New Lenders and the other Lenders of the Effective Date and such notice shall be conclusive and bindingbeen made.
Appears in 1 contract
Sources: Credit Agreement (PPD, Inc.)
Amendment Effectiveness. This AgreementAmendment, and the obligation of the New Term B-1 Lenders to fund Amended Term B-1 Loans or convert Existing Original Term A Loans or Existing Revolving Loans into Amended Term A Loans or Amended Revolving B-1 Loans, as applicable, shall become effective on July 8May 30, 2014 2013 (the “Effective Restatement Date”), upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) each Subsidiary Guarantor, (iv) each New Term A Lender, (v) each New Term B Lender, (v) each New Revolving B-1 Lender and (viiii) the Administrative Agent, either (x) counterparts of this Agreement Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Agreement;Amendment.
(b) The Administrative Agent shall have received: (i) a copy received evidence, including UCC, tax and judgment lien searches from the jurisdiction of formation and jurisdiction of the Organization Documents, including all amendments thereto, chief executive office of each Loan Credit Party, certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization; (ii) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization and from each other state in which such Loan Party is qualified or is required to be qualified to do business; and (iii) a certificate that none of the Secretary or Assistant Secretary of Collateral is subject to any Liens (in each Loan Party dated the Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing from its jurisdiction of organization furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as applicable, as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing any Loan Document;other than Permitted Liens).
(c) The Administrative Agent shall have received a duly executed certificate of an appropriate officer of each Credit Party, certifying (i) that the copies of such Credit Party’s Organizational Documents (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Restatement Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the appropriate Governmental Authority of the jurisdiction of such Credit Party’s organization or formation and attached to such officer’s certificate, dated are true, correct and complete and in full force and effect as of the Effective Restatement Date, (ii) that the copies of such Credit Party’s resolutions approving and adopting the Financing Documents to which it is party, the transactions contemplated herein, and authorizing the execution and delivery thereof, as attached to such officer’s certificate, are true, correct and complete copies and in full force and effect as of the Restatement Date and signed by a Responsible Officer (iii) as to incumbency certificates identifying the officers of such Credit Party that are authorized to execute the Borrower, confirming compliance Amendment and to execute and act on such Credit Party’s behalf in connection with the conditions precedent set forth in Section 4.02(b) and Section 4.02(c) of the Amended and Restated Credit Agreement;Amendment.
(d) On the Effective Date, the The Administrative Agent shall have received certificates of good standing or the equivalent (if any) for each Credit Party from such Credit Party’s jurisdiction of organization or formation, in each case certified as of a recent date by the appropriate Governmental Authority.
(e) Immediately before and after giving effect to the borrowing of the Term B-1 Loans, the Original Term Loan Refinancing and the effectiveness of this Amendment (i) no Event of Default shall have occurred and be continuing; and (ii) the representations and warranties (x) of each Credit Party set forth in the Financing Documents and (y) in Section 7 of this Amendment shall be true and correct in all material respects as of the Restatement Date (it being understood that, to the extent that any such representation and warranty specifically refers to an opinion earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(f) The Administrative Agent shall have received customary duly executed opinions of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to (ii) Co-General Counsel and Corporate Secretary of the Loan PartiesBorrower and (iii) ▇▇▇▇▇▇▇▇, addressed ▇▇▇▇▇▇ & Finger P.A., in each case dated as of the Restatement Date and reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and if such real property is located in a special flood hazard area, (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-1 to the Amended and Restated Credit Agreement Borrower and (y) an opinion certificates of insurance evidencing the General Counsel of the Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date in the form attached hereto as Exhibit L-2 to the Amended and Restated Credit Agreement;
(einsurance required by Section 5.03(b) On or prior to the Effective Date, the Administrative Agent shall have received:
(i) the Perfection Certificate duly executed on behalf of each Loan Party;
(ii) copies of lien search reports from Corporation Services Company or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices on any Collateral that name the Borrower, any other Loan Party, as such (under its present name and any previous name and, if requested by the Administrative Agent, under any trade names), as debtor or seller, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Liens permitted to remain outstanding on the Effective Date pursuant to Section 7.02 of the Amended and Restated Credit Agreement or for which the Administrative Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated in form and authorized for filing) and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.02 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably substance satisfactory to the Administrative Agent);
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interests in intellectual property Collateral;
(iv) all of the Pledged Collateral (to the extent not previously delivered to the Administrative Agent), which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, except as otherwise set forth in Section 6; and
(v) evidence of the completion of all other customary filings and recordings of or with respect to the Collateral Documents and of all other customary actions as may be necessary to perfect the security interests intended to be created by the Collateral Documents;
(f) Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties and their Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral Agent as additional insured and loss payee on behalf of the Lenders, except as otherwise set forth in Section 6;
(g) All fees to be paid on the Effective Date pursuant to the Engagement Letter and reasonable out-of-pocket expenses required to be paid on the Effective Date as contemplated in the Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date out of the initial Credit Extensions;.
(h) The Administrative Agent shall have received from a certificate of an appropriate officer of the Borrower a closing fee payable in Dollars (provided certifying that the closing fee for the New Term B Lenders may be payable conditions set forth in the form of original issue discount), (iSection 5(e) for the account of each New Revolving Lender, equal to 0.35% of the aggregate principal amount of the Amended Revolving Commitments of such New Revolving Lenders as of the Effective Date, (ii) for the account of each New Term A Lender, equal to 0.35% of the aggregate principal amount of the Amended Term A Loans of such New Term A Lenders as of the Effective Date and (iii) for the account of each New Term B Lender, equal to 0.50% of the aggregate principal amount of the Amended Term B Loans of such New Term B Lenders as of the Effective Date;have been satisfied.
(i) The Administrative Agent shall have received (i) be reasonably satisfied that on the Audited Financial Statements, (ii) Restatement Date the Unaudited Financial Statements and (iii) Original Term Loan Refinancing shall be consummated substantially simultaneously with the projections referred to in Section 5.05(d) funding of the Amended and Restated Credit Agreement;Term B-1 Loans.
(j) The Administrative Agent and the Amendment and Restatement Lead Arranger and Bookrunner shall have received on or prior to the date hereof, in immediately available funds, payment or reimbursement (or the Borrower shall have made arrangements reasonably satisfactory to the Administrative Agent for such payment or reimbursement) of all documentation costs, fees, out-of-pocket expenses, compensation and other information about amounts then due and payable in connection with this Amendment (including pursuant to a separately agreed engagement letter among the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint Amendment and Restatement Lead Arrangers in writing at least 5 days prior Arranger and Bookrunner), including all reasonable invoiced fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Effective Date and that the Administrative Agent and the Joint Amendment and Restatement Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” Arranger and anti-money laundering rules and regulationsBookrunner, including without limitation to the U.S. Patriot Act;
extent invoiced at least one (k1) The Administrative Agent shall have received a Notice of Borrowing no later than 1:00 p.m. two Business Days immediately Day prior to the Effective Date;
(l) Substantially concurrently with the incurrence of the Amended Loans, the Borrower will repay any Existing Revolving Loans and Existing Term A Loans not being converted into Amended Term A Loans under the Amended and Restated Credit Agreement; and
(m) The Borrower shall have paid all fees due and payable under the Credit Agreement (if any) to the Revolving Lenders, the L/C Issuer and the Swing Line Lender pursuant to the Credit Agreement; The documents referred to in this Section 5 shall be delivered to the Administrative Agent no later than the Effective Date. The certificates and opinions referred to in this Section 5 shall be dated the Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, each New Lender shall be deemed to have approved this Agreement and consented to, approved, accepted or be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the New Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such New Lender prior to the initial Borrowing hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable share of such Borrowingdate hereof. The Administrative Agent shall notify the Borrower, the New Term B-1 Lenders and the other Lenders of the Effective Restatement Date and such notice shall be conclusive and binding.
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