CONDITIONS TO EFFECTIVENESS AND LENDING SECTION 3.01.
Conditions to Effectiveness The effectiveness of this Amendment is subject only to the satisfaction (or waiver by each First Amendment Term Lender) of the following conditions precedent (the date on which such conditions have been satisfied (or waived by each First Amendment Term Lender) the “First Amendment Effective Date”): The Incremental Arranger shall have received executed counterparts of (A) this Amendment from the Borrower and each First Amendment Term Lender, (B) that certain Second Lien Guarantor Consent and Reaffirmation dated as of the date hereof, made by each Guarantor in favor of the Administrative Agent and the Collateral Agent, and (C) that certain fee letter dated the date hereof, by and among the Borrower, each First Amendment Term Lender and the Incremental Arranger (the “First Amendment Fee Letter”), from the Borrower and each First Amendment Term Lender. The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Second Lien Credit Agreement or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and except that for purposes of this Section 5(b), the representations and warranties contained in Sections 5.05(a) and (b) of the Second Lien Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b) of the Second Lien Credit Agreement, respectively, prior to the date hereof and the representations and warranties in Sections 5.12, 5.14 and 5.17 of the Second Lien Credit Agreement shall be made by reference to the date hereof. The Offeror shall make each of the Major Representations in respect of itself and such Major Representations shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereof. No Event of Default shall have occurred and be continuing as of the date hereof.
Conditions to Effectiveness of Agreement This Agreement shall not be effective until the date on which each of the following conditions have been satisfied, in the sole discretion of, or waived in writing by, the Managing Agents and the Administrative Agent (such date, the “Effective Date”):
Conditions to Effectiveness of Amendment This Amendment shall become effective upon the satisfaction (or waiver in writing by each Lender) of each of the following conditions precedent: (a) receipt by the Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent and the Lenders of a counterpart signature of the others to this Amendment duly executed and delivered by each of the Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent and the Lenders; (b) the hiring by Holdings of a Chief Restructuring Officer acceptable to each Lender in its sole and absolute discretion (the “CRO”), reporting directly to the special restructuring committee of the board of directors of Holdings, to (i) oversee all aspects of daily and weekly cash flows, including both receivables and payables management (ii) be granted sole approval rights over all cash disbursements and (iii) develop and ensure compliance with the Weekly Budget; (c) receipt by the Administrative Agent of the Closing Budget in a form acceptable to the Lenders, collectively, in their sole and absolute discretion; (d) receipt by the Administrative Agent of all notices, certificates, and other documentation provided by the Borrower or any of its Affiliates, or any of its or their officers or directors, to Silicon Valley Bank pursuant to the SVB Loan Agreement since April 1, 2017, including any borrowing base certificates, summary accounts receivable and accounts payable agings, and inventory certificates; (e) receipt by the Administrative Agent of a payoff letter from Silicon Valley Bank, in form and substance satisfactory to each Lender in its sole and absolute discretion; (f) receipt by the Administrative Agent of a Secretary’s Certificate, with respect to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in substantially the form delivered on the Restatement Date, in each case attaching resolutions of each such Person’s Board of Directors (or other managing body, in the case of other than a corporation) then in full force and effect authorizing the execution, delivery and performance of this Amendment and the transactions contemplated hereby; (g) receipt by the Administrative Agent of a copy of a good standing certificate for each of the Borrower, the Additional Delayed Draw Borrower and the Guarantors, dated within 30 days of the date hereof, from the jurisdiction of formation for each such Person; and (h) receipt by the Administration Agent of an opinion of counsel to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in form and substance reasonably satisfactory to the Lenders in their sole discretion.
Conditions to Effectiveness of Extensions As conditions precedent to such extension, (i) the Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Extension Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such extension and (B) in the case of the Company, certifying that, immediately before and after giving effect to such extension, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) on and as of the Extension Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) as of such earlier date, and except that for purposes of this Section 2.18, the representations and warranties contained in subsection (a) of Section 5.04 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (2) no Default or Event of Default exists, (ii) the Administrative Agent shall have received an Extension Agreement duly completed and signed by the Company and all of the Extending Lenders as required by Section 2.18(e) and (iii) the Company shall have paid (A) to the Arrangers and the Administrative Agent, for their own respective accounts, fees in the amounts and at the times specified as set forth in any fee letter related to the extension, (B) to the Lenders, for their respective own accounts, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified and (C) any other fees and expenses required to be paid in accordance with the Loan Documents. In addition, on the Maturity Date of each Non-Extending Lender, the Borrowers shall prepay any Committed Loans outstanding on such date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep outstanding Committed Loans ratable with any revised Applicable Percentages of the respective Lenders effective as of such date.