Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which: (i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional Term Lenders, the Administrative Agent (on its behalf, as well as on behalf of the Required Lenders and the Exchanging Term Lenders) and all Guarantors; (ii) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby; (iii) The Administrative Agent shall have received a customary written opinion of (a) Ropes & ▇▇▇▇ LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders; (iv) The Administrative Agent shall have received: (1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) 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 this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is 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 as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i)); (2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization; (3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and (4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower; (v) The aggregate proceeds of all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein; (vi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and (vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (PQ Group Holdings Inc.)
Conditions to Effectiveness of this Second Amendment. (a) This The effectiveness of this Second Amendment shall become effective on is subject to the date satisfaction (or waiver) of the following conditions (the time at which such conditions are satisfied or waived, the “Second Amendment Effective Date”) on which:):
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional Term Lendersshall have been duly executed by each Loan Party, the Administrative Agent (on its behalfAgent, as well as on behalf of the Required Revolving Lenders and the Exchanging Term Lenders) and all Guarantors2021 Incremental Revolving Lender (which may include a copy transmitted by facsimile or other electronic method);
(ii) the Administrative Agent (Aor its counsel) Each shall have received, on behalf of the representations and warranties set forth in Section 3 shall be true and correct in all material respects 2021 Incremental Revolving Lender on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(iii) The Administrative Agent shall have received a customary written opinion of (a) Ropes ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, in its capacity as special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent Agent, the Revolving Lenders and the Lenders and 2021 Incremental Revolving Lender;
(biii) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Administrative Agent shall have received a certificate of a Responsible Officer of each Borrower (or the Borrower and any Guarantors organized under the laws of PennsylvaniaRepresentative on its respective behalf), dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying which shall (i) certify that (A) that either (x) attached thereto is a true and complete copy of each Organizational Document the resolutions, written consent or extract of minutes of a meeting, as applicable, of the board of directors or similar governing body of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party Borrower authorizing the execution, delivery and performance of this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is a party and, in the case of the Borrower, the Borrowings hereunderAmendment, and that (B) such resolutions or written consent have not been modified, rescinded or amended and are in full force and effect and (ii) certify that either (A)(1) attached thereto is a true and complete copy of (x) the certificate of incorporation (or equivalent governing document) of such Borrower and (y) the by-laws (or similar governing document) of such Borrower and (2) such documents have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendment thereto as of such date) or (B) the date certificate of incorporation (or similar governing document) and bylaws (or similar governing document) of such certificateBorrower have not been amended, and (C) as to repealed, modified or restated since the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature delivery of the officer or authorized person executing certificate described in Section 4.01(d) of the certificate in this clause (i))Existing Credit Agreement;
(2iv) to the extent applicableThe representations and warranties of Holdings, a certificate as to the good standing of Intermediate Dutch Holdings, each Loan Party Borrower and its applicable Restricted Subsidiaries in Section 4 shall be true and correct in all material respects on and as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by (except in the case of any such representation or warranty which expressly relates to a Responsible Officer given earlier date or earlier period, in which case such representation or warranty is made as of the Borrowerrespective earlier date or for the respective earlier period, confirming compliance with as the condition precedent set forth in Section 4(a)(iicase may be); and
provided, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (4after giving effect to any qualification therein) a Borrowing Request completed and signed by a Responsible Officer of the Borrowerin all respects on such respective dates or for such respective periods;
(v) The aggregate proceeds No Default or Event of all Additional Term LoansDefault exists, if any, shall have been applied, concurrently with or would result from the exchange effectiveness of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein2021 Revolver Increase;
(vi) The Administrative Agent shall have received all fees and expenses required to be paid by the Borrower shall have, concurrently with Representative pursuant to the exchange of Exchanged Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately Engagement Letter for which invoices have been presented at least three Business Days prior to the Second Amendment Effective Date that are not party (or such later date to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; andRepresentative may agree), in each case on or before the Second Amendment Effective Date, which amounts may be offset against the proceeds of any Revolving Loans drawn on the Second Amendment Effective Date, if applicable;
(vii) The Repricing Arrangers Administrative Agent shall have received all fees a certificate from a Responsible Officer of the Borrower Representative certifying as to the satisfaction of the conditions set forth in clauses (iv) and other amounts due and payable on or (v) of this Section 3(a); and
(viii) The 2021 Incremental Revolving Lender shall have received at least three Business Days prior to the Second Amendment Effective Date, including(i) all documentation and other information reasonably requested with respect to any Loan Party in writing by the 2021 Incremental Revolving Lender, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a customary certification regarding beneficial ownership in relation to such Borrower, in each case, to the extent invoicedthat such documentation, reimbursement information or other payment of all out-of-pocket expenses required to be reimbursed or paid “beneficial ownership certification” has been reasonably requested by the Borrower hereunder or under any other Loan Document or other agreement with 2021 Incremental Revolving Lender in writing at least 10 Business Days in advance of the Borrower relating to the transactions contemplated herebySecond Amendment Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (NIQ Global Intelligence LTD), Credit Agreement (NIQ Global Intelligence LTD)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional Term Lenders, Lenders and the Administrative Agent (on its behalf, as well as on behalf of the Required Lenders and the Exchanging Term Lenders) and all Guarantors;, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying 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 Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York and California counsel to the Loan Parties.
(vi) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer expressly relate to a given date or periodan earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided thatearlier date, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;.
(iii) The Administrative Agent shall have received a customary written opinion of (a) Ropes & ▇▇▇▇ LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) 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 this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is 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 as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and
(4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(vvii) The aggregate proceeds of all the Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, will be used to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable (other than Exchanged Term Loans), on the terms and subject to the conditions set forth herein;, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viviii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Term Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become remain effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures only if each of the Borrowerfollowing conditions is satisfied on or before 5:00PM (Boston Time), Holdingson or before December 14, the Additional Term Lenders, the Administrative Agent (on its behalf, as well as on behalf of the Required Lenders and the Exchanging Term Lenders) and all Guarantors;
(ii) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(iii) The Administrative Agent shall have received a customary written opinion of (a) Ropes & ▇▇▇▇ LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received1999:
(1) a certificate An original counterpart of this Second Amendment is fully executed by each Borrower and delivered to the Agent.
(2) An original replacement Revolving Credit Note, payable to each Lender having an increased Dollar Commitment on account of this Second Amendment and reflecting, respectively, the entire amount that Lender's Commitment, is fully executed by each Borrower and delivered to the Agent.
(3) Payment in full to the Agent of an Amendment Fee of $300,000.00, which Amendment Fee shall be fully earned as of the secretary date hereof (with the Borrower hereby acknowledging that the Borrower shall not be entitled to any credit, rebate, or assistant secretary repayment of the Amendment Fee, or other fee previously earned by the Agent or any Lender pursuant to this Agreement, notwithstanding any termination of this Agreement or suspension or termination of the Agent's and any Lender's respective obligation to make loans and advances hereunder).
(4) Payment in full to the Agent of an additional Agent's Fee as specifically provided in a certain Fee Letter dated December 3, 1999 between the Borrower and the Agent, which Agent's Fee shall be fully earned as of the date hereof (with the Borrower hereby acknowledging that the Borrower shall not be entitled to any credit, rebate, or equivalent officerrepayment of the Agent's Fee, or other fee previously earned by the Agent or any Lender pursuant to this Agreement, notwithstanding any termination of this Agreement or suspension or termination of the Agent's and any Lender's respective obligation to make loans and advances hereunder).
(5) Receipt by the Agent, for the account of the Lenders, of each of the following:
(1) A Certificate setting forth the text of the resolutions adopted by the Directors of each Borrower authorizing that Borrower's execution of this Second Amendment and attesting to the authority of the persons who executed the Second Amendment on behalf of each Loan Party dated that Borrower.
(2) An opinion of counsel to the Borrower as to the due execution and effectiveness of this Second Amendment Effective Date, certifying (Awhich opinion is subject only to the same qualifications as had been included in the opinion delivered by that counsel at the initial execution of the Loan Agreement).
(3) that either (x) attached thereto is a true and complete copy A Certificate of each Organizational Document of such Loan Party andcorporate good standing, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date each Borrower, issued by the Secretary of State of the state State in which that Borrower was organized.
(4) Certificates of due qualification, in good standing, issued by the Secretary(ies) of State of each State in which the nature of each Borrower's business conducted or assets owned could require such qualification.
(5) Such additional instruments and documents as the Agent or its organization counsel reasonably may require or request.
(y6) Certificates executed on behalf of the Organizational Documents Borrowers by the Chief Executive Officer and the Chief Financial Officer of such Loan Party last delivered the Parent and stating that the representations and warranties made by the Borrowers to the Administrative Agent have not been amended and the Lenders in the Loan Documents are in full force and effect, (B) 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 this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is 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 all material respects as of the date of such certificateCertificate (except as shall be specifically noted in such Certificate), and that no event has occurred which is or which, solely with the giving of notice or passage of time (Cor both) as to the incumbency and specimen signature would be an Event of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(2) Default. Such Certificates, to the extent applicable, a certificate as shall also include replacement or supplemental Exhibits to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated Agreement with respect to any changes made since the Second Amendment Effective Date and signed by a Responsible Officer establishment of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and
(4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(v) The aggregate proceeds of all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein;
(vi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated herebyLoan.
Appears in 1 contract
Sources: Loan and Security Agreement (Sports Authority Inc /De/)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the first date (the “Second Amendment Effective Date”) on whichwhich the following conditions precedent are satisfied:
(i) The Administrative Agent shall have received duly (A) this Second Amendment, executed and delivered counterparts of this Second Amendment that, when taken together, bear by the signatures of the US Borrower, Holdings, the Additional Term Lenders, the Administrative Agent and the Replacement Term Lender and (on its behalfB) a written instrument reasonably satisfactory to the Administrative Agent, as well as on behalf executed and delivered by Holdings, the US Borrower and the Subsidiary Guarantors, pursuant to which each party thereto consents to this Second Amendment and the Replacement Term Loans and agrees that the Guarantee and Collateral Agreement and the other Security Documents to which it is party will continue to apply in respect of the Required Lenders and Amended Credit Agreement (the Exchanging Term Lenders) and all Guarantors“Reaffirmation Agreement”);
(ii) (A) Each The aggregate principal amount of the Replacement Term Loans, together with certain cash on hand of the US Borrower, shall be equal to the aggregate principal amount of the Existing Term Loans outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment (plus the amount of fees, costs and expenses incurred in connection with the Replacement Term Loans) and (B) the US Borrower shall have, concurrently with the making of the Replacement Term Loans, paid all accrued and unpaid interest and other amounts, if any, on the aggregate principal amount of the Existing Term Loans;
(iii) All fees and expenses in connection with this Second Amendment or under any other Loan Document or other agreement with the US Borrower relating to the transactions contemplated hereby (including reasonable and documented out-of-pocket legal fees and expenses required to be paid by the US Borrower pursuant to Section 9.3(a) of the Amended Credit Agreement) payable by the US Borrower on or before the Second Amendment Effective Date shall have been paid to the extent then due; provided that any such fees and expenses shall be required to be paid, as a condition precedent to the Second Amendment Effective Date, only to the extent invoiced at least one (1) Business Day prior to the Second Amendment Effective Date;
(iv) The Administrative Agent shall have received a solvency certificate in the form of Exhibit J to the Credit Agreement from a Responsible Officer of the US Borrower with respect to the solvency of the US Borrower and its Subsidiaries, on a consolidated basis, after giving effect to this Second Amendment and the transactions contemplated hereby;
(v) The Administrative Agent shall have received a duly executed officer’s certificate of the US Borrower certifying, as of the Second Amendment Effective Date, that (A) each of the representations and warranties set forth in Section 3 shall be above are true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates Date and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to this Second Amendment and the transactions contemplated hereby, or will result therefrom;
(iiivi) The Administrative Agent shall have received a customary written opinion of (a) Ropes & ▇▇▇▇ LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have receivedfollowing:
(1A) a certificate of the secretary Secretary or assistant secretary (or equivalent officer) on behalf Assistant Secretary of each Loan Agreement Party party to the Reaffirmation Agreement, dated the Second Amendment Effective Date, (1) attaching a copy of a short form certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each Loan Agreement Party party to the Reaffirmation Agreement is organized, dated reasonably near the Second Amendment Effective Date, certifying that such Loan Agreement Party is duly organized and in good standing or full force and effect under the laws of such jurisdiction and (A2) that either certifying (x) (I) that attached thereto is a true and complete copy of each Organizational Document the applicable formation document and by-laws or operating agreement of such Loan Agreement Party and, with respect as in effect on the Second Amendment Effective Date and at all times since a date prior to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or resolutions described in clause (y) below or (II) that the Organizational Documents applicable formation document and by-laws or operating agreement of such Loan Agreement Party last provided in the certificate delivered to on the Administrative Agent Closing Date have not been amended or otherwise modified since the Closing Date and are remain in full force and effecteffect on the Second Amendment Effective Date, (By) (I) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors, board of managers or members of other governing body, as applicable, of such Loan Agreement Party authorizing the execution, delivery and performance of this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is a party andthe borrowings hereunder, in the case of the US Borrower, the Borrowings hereunderand any Loan Documents to which each such Loan Agreement Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect or (II) that the resolutions duly adopted by the board of directors, board of managers or members of other governing body, as of the date applicable, of such certificateLoan Agreement Party in connection with the entry into the Credit Agreement on the Closing Date have not been modified, rescinded or amended and remain in full force and effect on the Second Amendment Effective Date and (Cz) (I) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and or any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Agreement Party or (together with a certificate of another officer or authorized person as to II) that the incumbency and specimen signature provided on the Closing Date of each officer executing this Second Amendment or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Agreement Party have not changed as of the officer or authorized person executing the certificate in this clause (i));Second Amendment Effective Date; and
(2B) Customary good standing “bringdown” confirmations for each Loan Agreement Party party to the extent applicableReaffirmation Agreement, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and
(4) a Borrowing Request completed and signed by a Responsible Officer of the BorrowerDate;
(vvii) The aggregate proceeds of all Additional Term Loans, if any, Administrative Agent shall have been appliedreceived the legal opinion of ▇▇▇▇▇▇, concurrently with ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to Holdings, the exchange US Borrower and certain of its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent (on behalf of any Person that will become a Lender of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein;
(vi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the Second Amendment Replacement Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans is not a Lender immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined belowDate), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(viiviii) Delivery of a Borrowing Request pursuant to Section 2.9 of the Credit Agreement.
(b) The Repricing Arrangers borrowing of the Replacement Term Loans pursuant to this Second Amendment shall have received all fees constitute a representation and other amounts due and payable on or prior to warranty by the US Borrower as of the Second Amendment Effective Date, including, to Date that the extent invoiced, reimbursement or other payment conditions contained in Section 4.2 of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated herebyCredit Agreement have been satisfied.
Appears in 1 contract
Sources: Second Replacement Facility Amendment (Continental Building Products, Inc.)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on upon the date satisfaction of the following conditions precedent concurrently with or prior to the making of the Tranche D Term Loans (such date, the “"Second Amendment Effective Date”) on which:"):
(ia) The Administrative Agent shall have received duly executed and delivered (i) counterparts of this Second Amendment that, when taken together, bear the signatures duly executed and delivered by each of the Borrower, Holdings, each of the Additional Term Lenders, Subsidiary Guarantors and the Administrative Agent (on its behalfAgent, as well as on behalf of the Required Lenders and the Exchanging Term Lenders) and all Guarantors;
(ii) a Lender Consent substantially in the form of Annex I hereto (Athe "Lender Consent"), duly executed and delivered by each of the Tranche D Term Loan Lenders.
(b) Each The Administrative Agent and the Tranche D Term Loan Lenders shall have received such legal opinions as are customary for transactions of this type or as they may reasonably request.
(c) Prior to and after giving effect to this Second Amendment, each of the representations and warranties set forth made by any Loan Party in Section 3 or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect date hereof as though if made on and as of such date, except ; provided that the references to the extent such representations and warranties specifically refer to a given date or period, Credit Agreement in which case such representations and warranties shall have been true and correct in all material respects on and be deemed to refer to the Credit Agreement as of such date or period; provided that, any representation or warranty that is qualified as amended pursuant to “materiality”, “Material Adverse Effect” or similar language are true and correct this Second Amendment.
(after giving effect to any qualification thereind) in all respects as of such respective dates and (B) no No Default or Event of Default has shall have occurred and is be continuing both before and immediately on the date hereof prior to or after giving effect to the transactions contemplated hereby;.
(iiie) The Administrative Agent shall have received a such documents and other instruments as are customary written opinion for transactions of this type or as the Administrative Agent may reasonably request, including with respect to the Mortgages, such documents, title insurance policies and endorsements as the Administrative Agent deems necessary or advisable to protect the validity and priority of any Lien created by such Mortgages.
(af) Ropes & ▇▇▇▇ LLPThe Borrower shall have paid to the Administrative Agent all outstanding fees, special counsel for costs and expenses invoiced to the Loan Parties, dated as of Borrower owing on the date hereof pursuant to the Credit Agreement or this Second Amendment.
(g) The Tranche B Term Loans and Tranche C Term Loans outstanding on the Second Amendment Effective Date and addressed to shall be refinanced in full with the Administrative Agent and proceeds of Tranche D Term Loans or converted into Tranche D Term Loans at the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as request of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) 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 this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is 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 as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and
(4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(v) The aggregate proceeds of all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein;
(vi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated herebyLender.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Day International Group Inc)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on whichwhen each of the following conditions shall have been satisfied:
(ia) The Administrative Agent shall have received duly executed and delivered counterparts no Event of this Default exists as of the Second Amendment thatEffective Date, when taken together, bear the signatures of the Borrower, Holdings, the Additional Term Lenders, the Administrative Agent (on its behalf, as well as on behalf of the Required Lenders both before and the Exchanging Term Lenders) and all Guarantorsimmediately after giving effect to Second Amendment;
(iib) (A) Each all of the representations and warranties set forth of the Borrower and each other Loan Party contained in Section 3 the Credit Agreement and the other Loan Documents (including this Second Amendment) are true and correct in all material respects on the Second Amendment Effective Date, both before and after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and only as of such date, except to the extent such representations specified date and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, (y) any representation or warranty that is qualified as to “materiality”, ,” “Material Adverse Effect” or similar language are shall be true and correct in all respects on such date);
(c) the Borrower, Holdings, the other Guarantors, the Administrative Agent and each 2018 Incremental Term Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent;
(d) the Administrative Agent shall have received signed Lender Consents from (i) the Required Lenders under the Amended Credit Agreement with respect to the amendment to the Credit Agreement in Section 1(n) hereof (for the avoidance of doubt, the delivery by each 2018 Incremental Term Lender of its signature page pursuant to preceding clause (c) shall constitute delivery of a Lender Consent for the purpose of such 2018 Incremental Term Lender’s consent to the amendment to the Credit Agreement in Section 1(n) hereof) and (ii) the Existing Term Lenders (after giving effect to the replacement of any qualification thereinNon-Consenting Lender pursuant to Section 3.07 of the Credit Agreement) under the Amended Agreement with respect to the amendment to the Credit Agreement in all respects as Section 1(d) hereof (for the avoidance of doubt, the delivery by each 2018 Incremental Term Lender of its signature page pursuant to preceding clause (c) shall constitute delivery of a Lender Consent for the purpose of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect 2018 Incremental Term Lender’s consent to the transactions contemplated herebyamendment to the Credit Agreement in Section 1(d) hereof);
(iiie) The the Administrative Agent shall have received a customary written opinion pdf-copy of (a) Ropes & ▇▇▇▇ LLPan extract from the Netherlands Commercial Register with respect to the Borrower, special counsel for certified resolutions or other corporate company action, or powers of attorney, if any, as the Administrative Agent may reasonably require duly authorizing the execution, delivery and performance of this Second Amendment and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Second Amendment and the other Loan Parties, dated as of Documents to which the Borrower is a party or is to be a party on the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the LendersDate;
(ivf) The in respect of the other Loan Parties, the Administrative Agent shall have received:
(1i) either (x) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party, certified as of a recent date by the secretary of state of the state of its organization (or equivalent office in each relevant jurisdiction) or (y) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf a Responsible Officer of each Loan Party dated the Second Amendment Effective Date, Date certifying that there has been no change to such organizational documents since last delivered to the Administrative Agent;
(ii) a certificate of a Responsible Officer of each Loan Party dated the Second Amendment Effective Date and certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document the by-laws or operating, management, partnership or similar agreement of such Loan Party and, with respect to as in effect on the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization Second Amendment Effective Date or (y) the Organizational Documents of there has been no change to such Loan Party governing documents since last delivered to the Administrative Agent have not been amended and are in full force and effectAgent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors or other equivalent governing body of such Loan Party authorizing the execution, delivery and performance of this Second Amendment and any the other related Loan Documents executed in connection with this Second Amendment to which such person is 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 as of the date of such certificateeffect, and (C) to the extent not previously delivered to the Administrative Agent, as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party and (together with D) good standing certificates (to the extent such concept exists in the relevant jurisdiction) for each Loan Party from the jurisdiction in which it is organized, each dated a recent date prior to the Second Amendment Effective Date; and
(iii) a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this delivered pursuant to clause (i))ii) above;
(2g) the Borrower shall have paid, (i) to the extent applicable, a certificate as Administrative Agent and the Arranger any fees and expenses owing to them pursuant to the good standing terms of the Credit Agreement (as amended hereby) and this Second Amendment or as otherwise separately agreed in writing in connection with this Second Amendment and the related transactions and (ii) to the Administrative Agent, for the ratable account of each Loan Party as Existing Term Lender (after giving effect to the replacement of a recent dateany Non-Consenting Lender pursuant to Section 3.07 of the Credit Agreement), from all accrued but unpaid interest on the Term Loans held by such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated Existing Term Lender immediately prior to the Second Amendment Effective Date Date;
(h) the Administrative Agent shall have received a Committed Loan Notice in respect of the 2018 Incremental Term Loans;
(i) the Borrower shall have delivered a Note executed by the Borrower in favor of each 2018 Incremental Term Lender that has requested a Note at least two Business Days in advance of the Closing Date;
(j) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying (with reasonably detailed calculations) that the conditions precedent set forth in (x) subclause (iv) of Section 2.14(d) of the Credit Agreement and (y) Section 3(a) and (b) of this Second Amendment have been satisfied;
(k) the Administrative Agent shall have received a solvency certificate signed by a Responsible Officer of the BorrowerBorrower (with appropriate modifications to reflect the consummation of the transactions contemplated by this Second Amendment) substantially in the form attached to the Credit Agreement as Exhibit D-2;
(l) the Administrative Agent shall have received a customary opinion from (x) ▇▇▇▇▇ Lovells US LLP, confirming compliance with New York counsel to the condition precedent set forth Loan Parties, (y) NautaDutilh New York P.C., Dutch and Curaçao counsel to the Loan Parties and (z) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ y Asociados S.C., Mexican counsel to the Loan Parties, in Section 4(a)(ii)each case, in form and substance reasonably satisfactory to the Administrative Agent; and
(4m) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(v) The aggregate proceeds of all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein;
(vi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately at least five days prior to the Second Amendment Effective Date Closing Date, any Borrower that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (qualifies as defined below), if any, then due and owing a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Term Lenders under Borrower. For the Loan Documents purpose of Section (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated hereby.3)(n):
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:immediately when the following conditions shall have been satisfied (or waived, which waiver may be concurrent with the satisfaction of the other conditions specified below):
(ia) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional Term Lenders, the Administrative Agent and each 2019 Refinancing Revolving Lender shall have signed a counterpart hereof (on its behalf, as well as on behalf of whether the Required Lenders and the Exchanging Term Lenders) and all Guarantors;same or different counterparts).
(ii) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(iiib) The Administrative Agent shall have received a customary written legal opinion (addressed to the Administrative Agent, the Collateral Agent and each of (athe Lenders) Ropes & of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for to the Loan Parties, dated as of the Second Amendment Effective Date Date, in form and addressed substance reasonably satisfactory to the Administrative Agent and the Lenders and (b) Babst, Calland, ▇▇▇▇▇▇▇▇ and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;Agent.
(ivc) The Administrative Agent shall have received:
(1) received a certificate of a Responsible Officer of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party Borrower, dated the Second Amendment Effective Date, certifying that the conditions in Sections 4(h) and 4(i) of this Second Amendment and those set forth in Section 2.21 of the Credit Agreement have been satisfied as of the Second Amendment Effective Date.
(Ad) that either (x) attached thereto is The Administrative Agent shall have received a true and complete certificate of a Responsible Officer of each Loan Party attaching a copy of (i) each Organizational Document of such each Loan Party andcertified, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) , as of a recent date by the Secretary of State applicable Governmental Authority, (ii) signature and incumbency certificates of the state Responsible Officers of its organization or (y) the Organizational Documents of such each Loan Party last delivered executing this Second Amendment to the Administrative Agent have not been amended and are in full force and effectwhich it is a party, (Biii) that attached thereto is a true and complete copy resolutions of resolutions duly adopted by the Board of Directors and/or similar governing bodies of such each Loan Party approving and authorizing the execution, delivery and performance of this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is 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 as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with to which it is a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(2) to the extent applicableparty, a certificate as to the good standing of each Loan Party certified as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation; provided that in the case of immediately preceding clauses (i) and (ii), such documents shall not be required to be delivered if such certificate includes a certification by such officer that the applicable Organizational Documents or resolutions delivered to the Administrative Agent in connection with the Effective Date remain in full force and effect and have not been amended, modified, revoked or rescinded since the Effective Date.
(e) The Administrative Agent shall have received a solvency certificate, substantially in the form of Exhibit E-2 of the BorrowerCredit Agreement, confirming compliance from the chief financial officer or chief accounting officer or other officer with equivalent duties of the condition precedent set forth in Section 4(a)(ii); andBorrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to this Second Amendment.
(4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(v) The aggregate proceeds of all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans with the Second Amendment Term Loans, to refinance in full all Existing Term Loans, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein;
(vif) The Borrower shall havehave paid to the Administrative Agent for the ratable benefit of each 2019 Refinancing Revolving Lender, concurrently with an upfront fee in an amount equal to 0.15% of the exchange aggregate amount of Exchanged Term Loans with the 2019 Refinancing Revolving Commitments (after giving effect to the reduction on the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (ADate pursuant to Section 3(a) paid all accrued and unpaid interest and other amounts hereof) held by such 2019 Refinancing Revolving Lender on the aggregate principal amount of the Existing Term Loans and (B) paid to all Term Lenders holding Existing Term Loans immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined belowwhich for the avoidance of doubt shall be $12,500,000), if anywith each such payment to be earned by, then due and owing to payable to, each such Term Lenders under Lender on the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; andAmendment Effective Date.
(viig) The Repricing Arrangers On the Second Amendment Effective Date, the Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Borrower to be due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, Date (including reimbursement or other payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid pursuant to Section 9.03(a) of the Credit Agreement); provided that the Borrower shall have been notified of any such amounts due by the Borrower hereunder or under any Administrative Agent two (2) Business Days before the Second Amendment Effective Date.
(h) Immediately before and after giving effect to this Second Amendment, all of the representations and warranties of each Loan Party contained in this Second Amendment and in the other Loan Document Documents (as amended by this Second Amendment) are true and correct in all material respects at such time; provided that, to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or other agreement similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.
(i) Immediately before and after giving effect to this Second Amendment, no Default or Event of Default has occurred and be continuing.
(j) Concurrently with the incurrence of the 2019 Refinancing Revolving Commitments, the Borrower relating shall have paid to the transactions contemplated herebyAdministrative Agent for the account of each Revolving Lender with outstanding Revolving Loans (if any) on, and immediately prior to, the Second Amendment Effective Date, all accrued but unpaid interest owing with respect to such Revolving Loans to but not including the Second Amendment Effective Date.
(k) Concurrently with the incurrence of the 2019 Refinancing Revolving Commitments, the Borrower shall have paid (i) to the Administrative Agent (for the account of the Revolving Lenders), all accrued and unpaid commitment fees owing with respect to the Refinanced Revolving Commitments, (ii) to the Administrative Agent (for the ratable account of the Issuing Bank), all accrued and unpaid fronting fees owing with respect to any Letters of Credit issued and outstanding on the Second Amendment Effective Date and (iii) to the Administrative Agent (for the ratable account of the Revolving Lenders), all accrued and unpaid Letter of Credit participation fees owing with respect to Letters of Credit issued and outstanding on the Second Amendment Effective Date, in each case, to but not including the Second Amendment Effective Date.
(l) Concurrently with the incurrence of the 2019 Refinancing Revolving Commitments and the funding of the 2019 Refinancing Revolving Loans (if any), the Refinanced Revolving Commitments shall have been terminated.
Appears in 1 contract