Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”): (a) the Loan Parties, the Administrative Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent; (b) the Borrowers shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment), by wire transfer of immediately available funds, (i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on the First Amendment Effective Date (after giving effect to the First Amendment), (iii) to the Swingline Lender, the aggregate principal amount of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreement; (c) on the First Amendment Effective Date and after giving effect to this First Amendment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer of the Borrower Agent, certifying the foregoing and as to the matters set forth in Section 6 hereof; (d) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of the Borrowers and each other Loan Party; (i) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in full, (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement; (f) there shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body of each Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the ABL Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are in full force and effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 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 (iii), and (B) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organized; (g) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on the First Amendment Effective Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof); (h) the Administrative Agent shall have received an opinion from Ropes & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and the Extending Lenders; and (i) the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area).
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Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”):
(a) the Loan PartiesBorrower, the Administrative Agent Subsidiary Guarantors, each Lender with outstanding Initial Term Loans (other than any First Amendment Non-Consenting Lender (as defined below), but including the Replacement Lender) and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (determined immediately prior to giving effect to this First Amendment) shall have signed duly executed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agentxxxxxx.xxxxxxx@xx.xxx, xxxx.xxxxxx@xx.xxx and XXXxxxxxxx0000@xxxxxxxxx.xxx;
(b) the Borrowers Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment), by wire transfer of immediately available funds, (i) all fees and expenses required to JPM in its capacity be paid by the Borrower to the Administrative Agent and Deutsche Bank Securities Inc., as sole lead arranger for hereof (the Extended ABL Revolving Commitments and Extended FILO Commitments“First Amendment Arranger”), including, without limitation, all fees as have been separately agreed, (ii) and expenses payable pursuant to each Extending Lender, an upfront fee equal to 0.10% Section 9.05 of the aggregate principal amount Credit Agreement, the Engagement Letter, dated as of February 13, 2020, among the Extended ABL Revolving Commitments Borrower and Extended FILO Commitments held by such lender on the First Amendment Effective Date (after giving effect to Arranger and the First Amendment)Fee Letter, (iii) to dated as of February 13, 2020, among the Swingline Lender, the aggregate principal amount of all outstanding Swingline Loans Borrower and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit AgreementArranger;
(c) the representations and warranties of the Loan Parties contained in Section 4 of this First Amendment are true and correct in all material respects on and as of the First Amendment Effective Date Date, except to the extent such representations and after giving effect warranties expressly relate to this First Amendmentan earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(i) no Default or Event of Default shall have occurred and be continuing and (iid) the Administrative Agent shall have received from the Borrowers Borrower a certificate executed by a Responsible Officer of the Borrower AgentBorrower, certifying compliance with the foregoing and as to the matters set forth in Section 6 hereofrequirements of preceding clause (c);
(de) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of the Borrowers and each other Loan Party;
(i) either (x) a copy of the assignment feecertificate or articles of incorporation or equivalent organizational document, if applicableincluding all amendments thereto, and other costs and expenses of each Non-Extending Lender with respect Loan Party, certified as of a recent date by the Secretary of State of the state of its organization or (y) a certification from such Loan Party that there has been no change to such organizational documents since last delivered to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in fullAdministrative Agent, (ii) a certificate of the Commitments and Loans Secretary or Assistant Secretary of each Non-Extending Lender shall have been assigned to Loan Party dated the First Amendment Effective Date and certifying (A) that (x) attached thereto is a Replacement Lender in accordance with Section 2.19(b) true and complete copy of the ABL Credit Agreement and (iii) all accrued and unpaid interest by-laws, operating agreement or similar governing document of such Loan Party as in effect on the Loans First Amendment Effective Date and at all times since a date prior to the date of each Non-Extending Lender shall have the resolutions described in clause (B) below or (y) there has been paid in full by the assignee thereof no change to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;
(f) there shall have been governing documents since last delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective DateAgent, (iiB) that attached thereto are is a true and correct copies complete copy of resolutions of duly adopted by the board of directors, members directors or other equivalent governing body of each such Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the ABL Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions have not been modified, rescinded or amended and are in full force and effect without modification effect, (C) that any attached certificate or articles of incorporation, equivalent organizational document, by-laws, operating agreement or similar governing document of such Loan Party have not been amended (in the case of the articles of incorporation (or equivalent governing document) of each such Loan Party, since the date of the last amendment and thereto shown on the certificate of good standing furnished pursuant to clause (iii) below) and (D) 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 First Amendment or any other document delivered in connection herewith on behalf of any such Loan Party, (iii) good standing certificates for each Loan Party from the jurisdiction in which it is organized, each dated a recent date prior to the First Amendment Effective Date; and (together with iv) a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer Secretary or authorized person Assistant Secretary executing the certificate in this delivered pursuant to clause (iii), and (Bii) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organizedabove;
(gf) the Administrative Agent shall have received from all documentation and other information about the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially Loan Parties reasonably requested in the form of Exhibit J writing by it at least ten (10) Business Days prior to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on the First Amendment Effective DateDate in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) certifying and a certificate regarding beneficial ownership as required by 31 C.F.R. § 1010.230; and
(g) (x) the matters set forth therein after giving effect to Initial Term Loans held by each Term Lender that has not executed and delivered a counterpart of this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);
(h) the Administrative Agent shall have received an opinion from Ropes & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and the Extending Lenders; and
on or prior to 5:00 P.M. (iNew York City time) the Administrative Agent on February 13, 2020 (each, a “First Amendment Non-Consenting Lender”) shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect been assigned to the Mortgaged Properties (together Replacement Lender in accordance with a notice about special flood hazard area status Sections 2.22(a) and flood disaster assistance, duly executed by 9.04 of the Borrower or the applicable Subsidiary (if required)Credit Agreement, and evidence (y) any fees, costs and any other expenses in connection with such assignment under Sections 2.15, 2.17, 2.21 or 2.22 of flood insurance, the Credit Agreement shall have been paid in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)full.
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Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”):
(a) Holdings, the Loan PartiesBorrower, the Administrative Agent Agent, each 2013 Replacement Term Lender, the Subsidiary Guarantors existing as of the First Amendment Effective Date and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to determined immediately after giving effect to this First Amendmentthe Refinancing) 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 White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxx (XXXXxxxxxxxx@xxxxxxxxx.xxx; facsimile number 212-354-8113), counsel to the Administrative Agent;
(b) the Borrowers Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment)paid, by wire transfer of immediately available funds, (i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, DBSI all fees as have been separately agreedagreed in the Engagement Letter or otherwise, (ii) to the Administrative Agent, for the ratable account of each Extending Existing Term Lender, all accrued but unpaid interest on the Original Refinanced Term Loans NEWYORK 8754158 (2K) through the First Amendment Effective Date at the rate in effect prior to giving effect to the First Amendment, (iii) to the Administrative Agent, for the ratable account of each Existing Term Lender, a fee in an upfront fee amount equal to 0.101.00% of the aggregate principal amount Original Refinanced Term Loans of the Extended ABL Revolving Commitments and Extended FILO Commitments held by each such lender Existing Term Lender outstanding on the First Amendment Effective Date (after immediately prior to giving effect to thereto) (it being understood that payment of the First Amendment), fee specified in clause (iii) above shall satisfy, in full, any obligation of the Borrower to pay the Swingline Lender, fee referred to in Section 2.10(b) of the aggregate principal amount of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing prior Credit Agreement in connection with the Repricing Transaction to the be effected pursuant to this First Amendment Effective Date Amendment) and (iv) to the Administrative Agent, all any other reasonable fees, costs and documented out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Administrative Agent required to be paid or reimbursed pursuant to Section 10.04 of the Credit Agreement;, including Attorney Costs; and
(c) on the First Amendment Effective Date and after giving effect to this First Amendment, (iI) no Default or Event of Default shall have occurred and be continuing and (iiII) all representations and warranties contained in the Administrative Agent Credit Agreement and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on the First Amendment Effective Date (it being understood and agreed that (x) to the extent such representations and warranties specifically refer to an earlier date, they shall have received from the Borrowers a certificate executed by a Responsible Officer be true and correct in all material respects as of the Borrower Agent, certifying the foregoing such earlier date and (y) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the matters set forth First Amendment Effective date or such earlier date referred to in Section 6 hereofclause (x), as applicable);
(d) the Administrative Agent shall have received from the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, Borrower a certificate executed and delivered by a Responsible Officer of each the Borrower certifying compliance with the requirements of the Borrowers and each other Loan Partypreceding clause (c);
(i) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in full, (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;
(fe) there shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members directors (or other similar governing body body) of each Loan Party approving and authorizing the execution, delivery and performance of this First Amendment and the performance Amendment, certified as of the ABL Credit Agreement (First Amendment Effective Date by a Responsible Officer of such Loan Party as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are being in full force and effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 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 (iii), and (B) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organized;
(gf) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on the First Amendment Effective Datei) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);
(h) the Administrative Agent shall have received an opinion from Ropes & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent Agent, the Collateral Agent, the 2013 Replacement Term Lenders and the Extending Lenders; and
Lenders and (iii) an opinion from Xxxxxxxxx Traurig LLP, Florida counsel to the Loan Parties, addressed to the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to Agent, the Mortgaged Properties (together with a notice about special flood hazard area status Collateral Agent, the 2013 Replacement Term Lenders and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)Lenders.
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Samples: Credit Agreement, Guaranty and Security Agreement (Bloomin' Brands, Inc.)
Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when each of the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”):
(a) the Loan PartiesLead Borrower, the Administrative Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) each 2021 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 AgentDxxxx Xxxx & Wxxxxxxx LLP;
(b) [reserved];
(c) the Borrowers Administrative Agent shall have paid (or shall pay substantially concurrently with received from the effectiveness of this First Amendment), Lead Borrower a certificate executed by wire transfer of immediately available funds, (i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% a Responsible Officer of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender Lead Borrower, certifying that on the First Amendment Effective Date (after giving effect to the First Amendment), (iiii) to the Swingline Lender, the aggregate principal amount of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing both immediately prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreement;
(c) on the First Amendment Effective Date and after giving effect to this First Amendment, (i) no Default or Event of Default shall have occurred and be continuing exist and (ii) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer each of the Borrower Agent, certifying representations and warranties set forth in the foregoing Credit Agreement and as to in the matters other Loan Documents (including the representations and warranties set forth in Section 6 hereofof this First Amendment) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the First Amendment Effective Date with the same effect as though made on and as of the First Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality, in all respects) as of such earlier date;
(d) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of Holdings, the Borrowers Lead Borrower and each other Loan PartySubsidiary Guarantor;
(ie) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto Administrative Agent shall have been paid in full, received from the Lead Borrower a solvency certificate from the chief financial officer (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance or other officer with Section 2.19(breasonably equivalent responsibilities) of the ABL Lead Borrower substantially in the form of Exhibit M to the Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof modified as appropriate to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreementgive effect to this First Amendment);
(f) there the Administrative Agent shall have received (i) 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 (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent Agent, (Aii) a certificate, certificate of the secretary or assistant secretary of each Loan Party dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party Date and certifying (iA) that no amendments (x) attached thereto is a true and complete copy of the by-laws or modifications have been made to the Organizational Documents operating, management, partnership or similar agreement of such Loan Party as in effect on the First Amendment Effective Date and at all times since a date prior to the same were date of the resolutions described in clause (B) below or (y) there has been no change to such governing documents since last delivered to the Administrative Agent prior to the First Amendment Effective DateAgent, (iiB) that attached thereto are is a true and correct copies complete copy of resolutions of duly adopted by the board of directors, members directors or other equivalent governing body of each such Loan Party authorizing the execution, delivery and performance of this First Amendment and and/or the performance of the ABL Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment Acknowledgement and Confirmation attached as Exhibit A hereto, as applicable, delivered pursuant to clause (d) above and that such resolutions have not been modified, rescinded or amended and are in full force and effect without modification effect, (C) that any attached certificate or articles of incorporation, equivalent organizational document, by-laws, operating, management, partnership or similar agreement of such Loan Party has not been amended (in the case of the articles of incorporation of each such Loan Party, since the date of the last amendment and thereto shown on the certificate of good standing furnished pursuant to clause (iiiE) below), (D) 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 First Amendment or any other document delivered in connection herewith on behalf of any such Loan Party and (together with E) good standing certificates for each Loan Party from the jurisdiction in which it is organized, each dated a recent date prior to the First Amendment Effective Date; and (iii) a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer secretary or authorized person assistant secretary executing the certificate in this delivered pursuant to clause (iii), and (Bii) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organizedabove;
(g) the Administrative Agent and each 2021 Term Lender shall have received from the Borrower Agent a solvency certificate from a Financial Officer favorable written opinion of the Parent Borrower substantially in the form of Exhibit J Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, as New York counsel to the ABL Credit Agreement (with appropriate modifications Loan Parties, reasonably acceptable to reflect the consummation of the transactions contemplated by the First Amendment on Administrative Agent and each such 2021 Term Lender dated the First Amendment Effective Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);
(h) the Administrative Agent shall have received an opinion from Ropes & Xxxx LLPthe Lead Borrower a certificate executed by a Responsible Officer of the Lead Borrower, special New York counsel certifying that all of the requirements of Section 2.22 of the Credit Agreement (as amended by this First Amendment) with respect to the Loan Parties, addressed to the Administrative Agent and the Extending Lenders; and2021 Term Facility thereunder have been satisfied;
(i) the Administrative Agent shall have received a all fees to be paid by the Lead Borrower on the First Amendment Effective Date pursuant to that certain Fee Letter, dated as of February 16, 2021 between the Lead Borrower and each Arranger referenced therein (collectively, the “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination 2021 Lead Arrangers”);
(j) so long as reasonably requested in writing by the Administrative Agent or the 2021 Lead Arranger (as defined below) at least ten Business Days prior to the First Amendment Effective Date, the Administrative Agent and the 2021 Lead Arrangers shall have received, at least two Business Days prior to the First Amendment Effective Date, all documentation and other information with respect to the Mortgaged Properties Loan Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the beneficial ownership regulation required by 31 C.F.R. § 1010.230; and
(together with k) the Administrative Agent shall have received a notice about special flood hazard area status and flood disaster assistance, duly executed Borrowing Request as required by Section 2.03 of the Borrower or Credit Agreement for the applicable Subsidiary (if required), and evidence of flood insurance, in 2021 Term Loans to be made on the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)First Amendment Effective Date.
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Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective as of the first date (the “First Amendment Effective Date”) on the date when which each of the following conditions shall have been satisfied (such datewhich, in the “First Amendment Effective Date”case of clause (h) below, may be substantially concurrent with the satisfaction of the other conditions specified below):
(a) The Administrative Agent and the Arranger shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) the Borrowers, (ii) each of the other Loan Parties, (iii) each of the Lenders constituting Required Lenders, (iv) the Administrative Agent, (v) each of the 2017 Refinancing Term A-1 Lenders, (vi) each of the 2017 Refinancing Term A-2 Lenders, (vii) each of the 2017 Refinancing Term B-1 Lenders, and (viii) each of the 2017 Refinancing Term B-2 Lenders.
(b) The Company shall have delivered a certificate to the Administrative Agent confirming that the representations and warranties contained in Section 3 of this First Amendment are true and correct as of the First Amendment Effective Date.
(c) The Administrative Agent shall have received a Loan Notice with respect to each 2017 Refinancing Term A-1 Loans, 2017 Refinancing Term A-2 Loans, 2017 Refinancing Term B-1 Loans and 2017 Refinancing Term B-2 Loans, in each case substantially in the form of Exhibit 2.02 to the Credit Agreement.
(d) The Administrative Agent and the Arranger shall have received:
(i) an English law governed security confirmation deed in relation to (a) the equitable charge over shares, dated 8 July 2015, between the Designated Borrower 2, as company and the Administrative Agent and (b) the debenture, dated 8 July 2015, between Financial Models Corporation Limited, SS&C Solutions Limited and SS&C Financial Services Limited (formerly known as GlobeOp Financial Services Limited), as chargors and the Administrative Agent, each in form and substance reasonably satisfactory to the Administrative Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) shall have signed a counterpart hereof (whether the same or different counterparts) Arranger and shall have delivered the same to the Administrative Agent;
(b) the Borrowers shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment), by wire transfer of immediately available funds, (i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on the First Amendment Effective Date (after giving effect to the First Amendment), (iii) to the Swingline Lender, the aggregate principal amount of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreement;
(c) on the First Amendment Effective Date and after giving effect to this First Amendment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Administrative Agent shall have received from the Borrowers a certificate properly executed by a Responsible Officer of the Borrower Agent, certifying the foregoing and as to the matters set forth in Section 6 hereofeach Loan Party party thereto;
(dii) a Luxembourg governed (a) confirmation agreement to the CPECs pledge agreement between Advent Software Luxembourg, as pledgor, the Administrative Agent, as pledgee, and the Designated Borrower 1, over the CPECs issued by the Designated Borrower 1, dated July 8, 2015 and as amended and confirmed on Xxxxx 0, 0000, (x) confirmation agreement to the share pledge agreement between Advent Software Luxembourg, as pledgor, the Administrative Agent, as pledgee, and the Designated Borrower 1, as company, over the shares of the Designated Borrower 1, dated July 8, 2015 and as amended and confirmed on March 4, 2016, (c) confirmation agreement to the CPECs and PECs pledge agreement between Hub Data Incorporated, as pledgor, the Administrative Agent, as pledgee and Advent Software Luxembourg, as company, over the CPECs and PECs issued by Advent Software Luxembourg, dated Xxxxx 0, 0000, (x) confirmation agreement to the share pledge agreement between Hub Data Incorporated, as pledgor, the Administrative Agent, as pledgee, and Advent Software Luxembourg, as company, over the shares of Advent Software Luxembourg, dated March 4, 2016, (e) confirmation agreement to the share pledge between the Designated Borrower 1, as pledgor, the Administrative Agent, as pledgee, and the Designated Borrower 2, as company, over the shares issued by the Designated Borrower 2, dated July 8, 2015 and (f) confirmation agreement to the CPECs pledge agreement between the Designated Borrower 1, as pledgor, the Administrative Agent, as pledgee and the Designated Borrower 2, as company, over the CPECs issued by the Designated Borrower 2, dated July 8, 2015, each in form and substance reasonably satisfactory to the Administrative Agent shall have received and the Acknowledgment Arranger and Confirmation, substantially in the form of Exhibit A hereto, properly executed and delivered by a Responsible Officer of each Loan Party party thereto; and
(iii) a Cayman Islands law governed security confirmation deed in relation to the share security agreement, dated 8 July 2015, and entered into between GlobeOp Financial Services (Switzerland) GmbH, as chargor, SS&C Fund Services (Cayman) Ltd. (formerly known as GlobeOp Financial Services (Cayman) Ltd.) as company and the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent and the Arranger and properly executed by a Responsible Officer of each Loan Party party thereto.
(e) The Administrative Agent and the Borrowers and each other Loan Party;
Arranger shall have received legal opinions of (i) the assignment feeXxxxx Xxxx & Xxxxxxxx LLP, if applicable, and other costs and expenses of each Non-Extending Lender with respect New York counsel to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in fullLoan Parties, (ii) Xxxxxx & Xxxxxxxxx XX, Luxembourg counsel to the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and Administrative Agent, (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;
(f) there shall have been delivered White & Case LLP, English counsel to the Administrative Agent and (Aiv) a certificateMourant Ozannes, Cayman Islands counsel to the Administrative Agent, in each case, addressed to the Administrative Agent and each Lender (including each 2017 Refinancing Term Lender), dated as of the First Amendment Effective Date, executed by and in form and substance reasonably satisfactory to, the Administrative Agent and the Arranger.
(f) The Administrative Agent and the Arranger shall have received a Responsible Officer certificate of each Loan Party, dated the date of the First Amendment Effective Date (which the statements made in such certificate shall be deemed for this purpose true and correct on and as of the First Amendment Effective Date), certifying as to include any Secretary or any Assistant Secretaryeach of the following:
(i) copies of the Organization Documents of each Loan Party certifying certified to be true and complete as of the date of the resolutions referred to in clause (iii) that no amendments below were filed with the appropriate Governmental Authority of the state or modifications have been made to the Organizational Documents 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 First Amendment Effective Date;
(ii) such certificates of resolutions or other action, incumbency certificates (if applicable in the relevant jurisdiction) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this First Amendment; and
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly incorporated, organized or formed, and is validly existing, in good standing and qualified to engage in business in its state or jurisdiction of incorporation, organization or formation (if applicable). Notwithstanding the foregoing, the Administrative Agent and the Arranger agree that, in lieu of subclauses (i) or (ii), as applicable, a Loan Party may certify that (1) there have been no changes to the Organizational Documents, (2) there have been no further resolutions or amendments to the existing resolutions pertaining to the Credit Agreement and related ancillary matters or (3) there have been no changes to the list of Responsible Officers, in each case since the same date such documents were delivered to the Administrative Agent prior on the Closing Date (or the date such Loan Party became a party to the Credit Agreement pursuant to a Joinder Agreement)..
(g) An amount equal to the Net Cash Proceeds from the incurrence of the 2017 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans of the applicable Class pursuant to, and in accordance with the requirements of, Section 2.05(b)(v)(B)) of the Amended Credit Agreement and all accrued but unpaid interest, fees and premiums (if any) with respect to all such Term Loans, as well as any amounts payable pursuant to Section 3.05 of the Amended Credit Agreement, shall have been paid in full.
(h) Each of the 2017 Refinancing Term Lenders and the Administrative Agent shall have executed and delivered a joinder or supplement to the Re-Allocation Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Arranger. Notwithstanding the foregoing, the parties hereto agree that in the event the conditions precedent in paragraphs (d)(i), (d)(ii), (d)(iii), (e)(ii) (but solely with respect to the confirmation agreements described in paragraph (d)(ii)), (e)(iii) or (e)(iv) of this Section 4 cannot be satisfied on the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body of each Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the ABL Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are in full force and effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 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 (iii), and (B) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organized;
(g) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on actions may be completed within 10 Business Days after the First Amendment Effective Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby Date (including the conversion pursuant to Section 1(a) hereof);
(h) or such later date as the Administrative Agent shall have received an opinion from Ropes & Xxxx LLP, special New York counsel may agree to the Loan Parties, addressed to the Administrative Agent and the Extending Lenders; and
(i) the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard areaits reasonable discretion).
Appears in 1 contract
Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date hereof (the “First Amendment Effective Date”) when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”or waived):
(a) the Loan PartiesAdministrative Agent (or its counsel) shall have received from the Borrower, Holdings, the Administrative Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to New Term Loan Lender counterparts of this First Amendment) shall have Amendment signed a counterpart hereof on behalf of such parties (whether the same including by way of facsimile or different counterparts) and shall have delivered the same to the Administrative Agentother electronic transmission);
(b) substantially simultaneously with the Borrowers making of the New Term Loans, the Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment)paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses (i) including the reasonable and documented in reasonable detail fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to JPM the Lead Arranger in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% respect of the aggregate principal amount New Term Loans), compensation and other amounts then due and payable pursuant to the engagement letter, dated as of March 26, 2015, by and between the Borrower and the Lead Arranger, in the case of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on the First Amendment Effective Date (after giving effect to the First Amendment), (iii) to the Swingline Lender, the aggregate principal amount of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with to the preparation, execution and delivery of this extent invoiced at least one Business Day prior to the First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit AgreementEffective Date;
(c) on the First Amendment Effective Date and after giving effect to this First AmendmentAmendment and the funding of the New Term Loans, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer representations and warranties of the Borrower Agentand each other Loan Party in this First Amendment, certifying the foregoing Credit Agreement and as to the matters set forth other Loan Documents shall be accurate in Section 6 hereofall material respects (except for any representations and warranties already qualified by materiality or Material Adverse Effect, which shall be accurate in all respects) before and after the effectiveness of this First Amendment;
(d) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, a certificate executed and delivered by a Responsible Officer of each the Borrower, certifying compliance with the requirements of the Borrowers preceding clause (c) and each other Loan Partyof the succeeding clause (f);
(ie) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto Administrative Agent shall have been paid in fullreceived a Committed Loan Notice, (ii) duly executed by the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) Borrower, for the Borrowing of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the New Term Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof pursuant to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreementthis First Amendment;
(f) there shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body directors of each Loan Party approving and authorizing the execution, delivery and performance of this First Amendment and the performance Amendment, certified as of the ABL Credit Agreement (First Amendment Effective Date by a Responsible Officer of each Loan Party as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are being in full force and effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 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 (iii)amendment, and (B) good standing certificates as of a recent date for each Loan Party Party, in each case, from the jurisdiction in which they are organized;, (C) a certificate of a Responsible Officer of the Borrower (which may be the same certificate as the certificate delivered pursuant to the preceding clause (d)), certifying that since the First Amendment Effective Date, except as attached to such certificate, there have been no changes to the Organizational Documents of the Loan Parties and/or attaching copies of any such Organizational Documents that have changed since the First Amendment Effective Date and (D) a solvency certificate from a Responsible Officer of the Borrower (after giving effect to the New Term Loans); and
(g) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on the First Amendment Effective Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);
(h) the Administrative Agent shall have received an opinion from Ropes Xxxxxx & Xxxx Xxxxxxx LLP, special New York counsel to the Loan Parties, Parties in form and substance reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent and the Extending Lenders; and
(i) the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)New Term Loan Lender.
Appears in 1 contract
Samples: First Lien Credit Agreement (Advantage Solutions Inc.)
Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”):Date upon satisfaction (or waiver) of the following conditions:
(a) the Loan PartiesBorrower, the Administrative Agent Guarantors, and the Extending Lenders constituting at least Administrative Agent, on behalf of itself, each Replacement Term B Lender and the Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) Lenders, 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 King & Spalding LLP, 000 X Xxxxx Xxxxxx, Suite 3900, Charlotte, NC 28202, Attention: Xxxxxx Xxxxxxx (xxxxxxxx@xxxxx.xxx; telephone: (000) 000-0000; facsimile number: (000) 000-0000), counsel to the Administrative Agent;
(b) the Borrowers Administrative Agent shall have paid received executed consents (or shall pay substantially concurrently with each a “Lender Consent”) from the effectiveness of Replacement Term B Lenders and the Required Lenders authorizing the Administrative Agent to enter into this First Amendment)Amendment on their behalf. The delivery by the Administrative Agent of its signature page to this First Amendment shall constitute conclusive evidence that the consents from the Replacement Term B Lenders and Required Lenders have been obtained;
(c) the Borrower shall have paid, by wire transfer of immediately available funds, (i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on the First Amendment Effective Date (after giving effect to the First Amendment)Lead Arranger, (iii) fees pursuant to the Swingline LenderEngagement Letter, dated as of March 11, 2013, between the aggregate principal amount of all outstanding Swingline Loans Borrower and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit AgreementLead Arranger;
(cd) on the First Amendment Effective Date and after giving effect to this First Amendment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the representations and warranties of the Borrower and each other Loan Party in this First Amendment, the Credit Agreement and the other Loan Documents shall be true and correct on and as of the First Amendment Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date;
(e) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer of the Borrower AgentBorrower, certifying compliance with the foregoing and as to requirements of the matters set forth in Section 6 hereof;
preceding clause (d) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of the Borrowers and each other Loan Party;
succeeding clause (i) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in full, (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreementf);
(f) there shall have been no event or circumstance since December 31, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(g) there shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body directors of each Loan Party the Borrower approving and authorizing the execution, delivery and performance of this First Amendment and the performance Amendment, certified as of the ABL Credit Agreement (First Amendment Effective Date by a Responsible Officer of the Borrower as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are being in full force and effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 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 (iii)amendment, and (B) good standing certificates as of a recent date for each Loan Party the Borrower from the jurisdiction in which they are organized;
it is organized and (gC) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from of a Financial Responsible Officer of the Parent Borrower substantially in Borrower, certifying that since the form of Exhibit J Closing Date, except as attached to such certificate, there have been no changes to the ABL Credit Agreement (with appropriate modifications to reflect the consummation Organization Documents of the transactions contemplated by Borrower and attaching copies of any such Organization Documents that have changed since the First Amendment on the First Amendment Effective Closing Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);; and
(h) the Administrative Agent shall have received an a favorable opinion from Ropes Xxxxx, Xxxx & Xxxx LLPXxxxxxxx, special New York counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Extending Lenders; and
(i) Lenders and in form and substance reasonably satisfactory to the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)Agent.
Appears in 1 contract
Samples: Credit Agreement (Health Management Associates, Inc)
Conditions of Effectiveness of this First Amendment. This (a) Sections 1, 2(a), 2(b), 2(c), 2(d), 3, 4(a), 5, 6, 7, 8, 9, 10 and 11 of this First Amendment shall become effective on as of the first date (the “Initial First Amendment Effective Date”) when each of the following conditions set forth in this Section 4(a) shall have been satisfied (such datewhich, in the “First Amendment Effective Date”case of clauses (ii), (viii) and (ix) below, may be substantially concurrent with the satisfaction of the condition specified in clause (i) below):
(ai) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the Borrower, each of the other Loan Parties, each of the 2016 New Replacement Term Lenders, each of the 2016 Converting Replacement Term Lenders, each of the 2016 Incremental Term Loan Lenders, the Administrative Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Collateral Agent;.
(bii) the Borrowers The Borrower shall have paid (or shall pay substantially concurrently with all costs, fees and other amounts due and payable to the effectiveness of this First Amendment)Agents and the Lenders, by wire transfer of immediately available funds, including (i) pursuant to JPM in its capacity as sole lead arranger for Section 4.1(b)(i) of the Extended ABL Revolving Commitments and Extended FILO CommitmentsCredit Agreement, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee a prepayment premium equal to 0.101.00% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on Closing Date Term Loans to the First Amendment Effective Date (after Administrative Agent for the ratable benefit of the applicable Term Lenders immediately prior to giving effect to the First Amendment), 2016 Incremental Term Loan Conversion and the incurrence of the 2016 New Replacement Term Loans and (iiiii) to the Swingline Lenderextent invoiced, the aggregate principal amount reimbursement or payment of all outstanding Swingline Loans reasonable and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to the Administrative Agent, all reasonable fees, costs and documented out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment and any other reasonable and documented out-of-pocket expenses of the Agents, including the reasonable and documented out-of-pocket fees, charges and disbursements of counsel for the Administrative Agent, in each case as required to be paid or reimbursed pursuant to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreement;.
(ciii) on On the Initial First Amendment Effective Date and after giving effect to this First Amendment, (iA) no Default or Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Initial First Amendment Effective Date and (iiB) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Initial First Amendment Effective Date (except to (I) the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date and (II) representations and warranties qualified by materiality shall be true and correct in all respects).
(iv) The Administrative Agent shall have received from the Borrowers Borrower a certificate executed by a Responsible Officer of the Borrower AgentBorrower, certifying compliance with (A) the foregoing requirements of the immediately preceding clause (iii) and (B) as to compliance with the matters set forth in requirements of Section 6 hereof;11.1 of the Credit Agreement relating to Replacement Facilities and Section 2.4 of the Credit Agreement relating to Incremental Term Facilities.
(dv) the The Administrative Agent shall have received the Acknowledgment legal opinion, dated the Initial First Amendment Effective Date, of Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower, in each case reasonably acceptable to the Administrative Agent.
(vi) The Borrower shall have delivered to the Administrative Agent a notice of borrowing for the extensions of credit to be made on the Initial First Amendment Effective Date.
(vii) The Administrative Agent shall have received (x) a solvency certificate substantially in the form of Exhibit I-2 to the Credit Agreement, executed as of the Initial First Amendment Effective Date by the chief financial officer of the Borrower and Confirmation(y) a certificate of the Borrower, dated as of the Initial First Amendment Effective Date, substantially in the form of Exhibit A heretoF-2 to the Credit Agreement, executed with appropriate insertions and delivered attachments including the certificate of incorporation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower, good standings from the applicable secretary of state of organization of the Borrower, a certificate of resolutions or other action, incumbency certificates of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this First Amendment and the other Loan Documents to which the Borrower is a party or is to be a party on the Initial First Amendment Effective Date.
(viii) An amount equal to the Net Cash Proceeds from the incurrence of the Borrowers and each other portion of the 2016 New Replacement Term Loans to be funded by the 2016 New Replacement Term Loan Party;
(i) Lenders, less the assignment fee, if applicable, and other costs and expenses sum of each Non-Extending Lender all accrued but unpaid interest with respect to the assignment Term Loans as of the Initial First Amendment Effective Date, shall have been applied (immediately following the consummation of the 2016 Replacement Term Loan Conversion) to make a voluntary prepayment of Term Loans not subject to the 2016 Replacement Term Loan Conversion (including, for the avoidance of doubt, with respect to any 2016 Converting Replacement Term Loan Lender, the amount (if any) by which such 2016 Converting Replacement Term Loan Lender’s Allocated Replacement Term Loan Conversion Amount is less than the outstanding principal amount of its Commitments Term Loans immediately prior to the consummation of the 2016 Replacement Term Loan Conversion) pursuant to, and in accordance with the requirements of, Section 4.1 of the Credit Agreement and all accrued but unpaid interest and fees with respect to all Term Loans (irrespective of whether such Term Loans are subject to the 2016 Replacement Term Loan Conversion and whether such accrued amounts are otherwise then due and payable by the terms of the Credit Agreement), as well as any Loans made amounts payable pursuant thereto to Section 4.11 of the Credit Agreement (as modified hereby), shall have been paid in full, .
(iiix) An amount equal to the Commitments and Net Cash Proceeds from the incurrence of the 2016 Incremental Term Loans of each Non-Extending Lender shall have been assigned applied to make a Replacement Lender voluntary prepayment of all outstanding Revolving Loans pursuant to, and in accordance with the requirements of, Section 2.19(b) 4.1 of the ABL Credit Agreement and (iii) all accrued but unpaid interest, fees and unpaid interest on premiums (if any) with respect to all outstanding Revolving Loans subject to such prepayment, as well as any amounts payable pursuant to Section 4.11 of the Loans of each Non-Extending Lender Credit Agreement, shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;full.
(fx) there The Borrower shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each 2016 Replacement Term Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since Lender requesting the same were delivered to the Administrative Agent at least three Business Days prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body of each Loan Party authorizing the execution, delivery and performance date of this First Amendment and Amendment, a promissory note in the performance amount of the ABL Credit Agreement such Lender’s 2016 Replacement Term Loans (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are in full force and determined after giving effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any 2016 Incremental Term 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 (iii), and (BConversion) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organized;
(g) the Administrative Agent shall have received from the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower substantially in the form of Exhibit J E-1 to the ABL Credit Agreement Agreement.
(with appropriate modifications to reflect the consummation b) Sections 2(e) and 4(b) of this First Amendment shall become effective as of the transactions contemplated by first date (the First Amendment on the “Subsequent First Amendment Effective Date” and, together with the Initial First Amendment Effective Date, each, a “First Amendment Effective Date”) certifying when each of the matters conditions set forth therein after giving effect to in this Section 4(b) shall have been satisfied (which, in the case of clause (iii) below, may be substantially concurrent with the satisfaction of the other conditions specified below):
(i) The Initial First Amendment and Effective Date shall have occurred.
(ii) The Administrative Agent shall have received, for the consummation benefit of the transactions contemplated hereby (including Lenders, the conversion pursuant to Section 1(a) hereof);Second Disclosure Letter, dated as of September 30, 2016, executed and delivered by the Borrower.
(hiii) the The Administrative Agent shall have received an opinion from Ropes & Xxxx LLPduly executed counterparts hereof that, special New York counsel to when taken together, bear the signatures of the Borrower, each of the other Loan Parties, addressed to the Lenders constituting the New Required Lenders, the Administrative Agent and the Extending Lenders; Collateral Agent and
(i) the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination , solely with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if requiredSection 2(e)(i), each of the Revolving Lenders.
(iv) The Borrower shall have paid all fees and evidence other amounts due and payable to the Agents and the Lenders, including, to the extent invoiced, reimbursement or payment of flood insurancereasonable and documented out-of-pocket expenses in connection with this First Amendment and any other reasonable and documented out-of-pocket expenses of the Agents, including the reasonable and documented out-of-pocket fees, charges and disbursements of counsel for the Administrative Agent, in each case as required to be paid or reimbursed pursuant to the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on as of the first date when the following conditions shall have been satisfied (such date, the “First Amendment Effective Date”):) when each of the conditions set forth in this Section 4 shall have been satisfied:
(a) the Loan Parties, the Administrative The Paying Agent and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to shall have received this First Amendment) shall have signed a counterpart hereof (whether , executed and delivered by the same or different counterparts) Paying Agent, the Company and shall have delivered each Bank under the same to the Administrative Agent;Existing Credit Agreement.
(b) the Borrowers The Paying Agent shall have paid received the following, each dated (or shall pay substantially concurrently with unless otherwise indicated) the effectiveness of this First Amendment), by wire transfer of immediately available funds, Amendment Effective Date:
(i) to JPM in its capacity as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitments, all fees as have been separately agreed, (ii) to each Extending Lender, an upfront fee equal to 0.10% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by such lender on Officer's Certificates dated the First Amendment Effective Date certifying, inter alia, (after giving i) true and correct copies of resolutions adopted by the Board of Directors or Executive Committee, as appropriate, of the Company authorizing the Company to borrow and effect to other transactions hereunder, (ii) a true and correct copy of the First Amendment)Company's bylaws in effect on the date hereof, (iii) the incumbency and specimen signatures of the Persons executing any documents on behalf of the Company, (iv) the truth of the representations and warranties made by the Company in the Credit Agreement (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), and (v) the Swingline Lender, absence of the aggregate principal amount occurrence and continuance of all outstanding Swingline Loans any Default or Event of Default.
(ii) A copy of the Company's charter and all accrued but unpaid interest thereon accruing amendments thereto, accompanied by certificates that such copy is correct and complete, one certificate dated within a reasonable time prior to the First Amendment Effective Date and (iv) to issued by the Administrative Agent, all reasonable fees, costs Secretary of State of Texas and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreement;
(c) on one certificate dated the First Amendment Effective Date and after giving effect to this First Amendment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer the corporate secretary or assistant secretary of the Borrower Agent, certifying the foregoing and as to the matters set forth in Section 6 hereof;Company.
(d) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of the Borrowers and each other Loan Party;
(i) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in full, (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;
Certificates (f) there shall have been delivered to the Administrative Agent (A) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent within twenty days prior to the First Amendment Effective Date) of existence and good standing of the Company from appropriate officials of Texas.
(iv) The written opinion of Xxxxxxxxx Aviation Law, P.C., special FAA counsel to the Company, in a form reasonably satisfactory to the Collateral Agent, or written confirmation from Xxxxxxxxx Aviation Law, P.C. immediately prior to closing that they have reviewed pre-closing FAA indexes and priority search certificates for the airframes and engines that are Pool Assets and confirm they are in a position to issue their opinion assuming no intervening filings or registrations.
(v) The opinions of internal and outside counsel to the Company, in a form reasonably satisfactory to the Paying Agent.
(vi) Such other agreements, documents, instruments, opinions, certificates, and evidences as the Paying Agent may reasonably request prior to the First Amendment Effective Date.
(c) The Collateral Agent shall have received Lien searches conducted in the recording office of the FAA and, with respect to the applicable Collateral, "priority search certificates" (as defined in the Regulations and Procedures for the International Registry), all as may be reasonably satisfactory to the Collateral Agent (dated as of a date reasonably satisfactory to the Collateral Agent), reflecting the absence of Liens and encumbrances on the assets of the Company and the other Grantors constituting Collateral, other than Permitted Liens, and the absence of registrations (other than sale registrations) on the International Registry with respect to the applicable Collateral, other than the registrations contemplated herein, and (in the case of the searches conducted at the recording office of the FAA) indicating that the Company (or the applicable Grantor) is the registered owner of each of the aircraft which is intended to be covered by the Aircraft Mortgage.
(d) The Company and the Collateral Agent shall have duly executed and delivered to the Collateral Agent an aircraft mortgage, in substantially the form of Exhibit I to the Credit Agreement (the "Aircraft Mortgage"), together with (i) the filing for recordation with the FAA of the Aircraft Mortgage for recording as evidenced by a written confirmation from Xxxxxxxxx Aviation Law, P.C. of its submission to the FAA of the Aircraft Mortgage from the FAA for recording (together with any other necessary documents, instruments, affidavits or certificates) as the Collateral Agent may deem reasonably necessary to perfect and protect the Liens created thereby, including, without limitation, recordings and filings with the FAA, and all filings and recording fees and taxes in respect thereof shall have been duly paid, (ii) that attached thereto are true and correct copies of resolutions of the board of directorsEntry Point Filing Forms, members or other governing body of each Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the ABL Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are in full force and effect without modification or amendment and (iii) as evidence that Xxxxxxxxx Aviation Law, P.C., special FAA counsel to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any Loan Party Company, (together with a certificate of another officer or authorized person a) has provided email confirmation that the International Interests created by the Aircraft Mortgage have been registered as “prospective” International Interests prior to the incumbency and specimen signature execution of the officer or authorized person executing the certificate in this clause (iii)Aircraft Mortgage, and (B) good standing has provided priority search certificates as of a recent date for each Loan Party from the jurisdiction International Registry to the Collateral Agent evidencing such prospective International Interests or (b) has established an International Registry Closing Room to facilitate the registration on the International Registry, and provided email confirmation that the Closing Room has been released and thus the International Interests created by the Aircraft Mortgage have been registered against the airframes and engines that are Pool Assets, (iv) evidence, to the extent available, of the filing of financing statements in which they are organized;appropriate form with the Texas Secretary of State and (v) evidence that all other action that the Collateral Agent may deem reasonably necessary to perfect and protect the Liens and security interests created under the Aircraft Mortgage has been taken. The parties hereto acknowledge and agree that any Lien described in the Credit Agreement on the Collateral is a Lien in favor of the Collateral Agent for the ratable benefit of the Secured Parties.
(ge) A Uniform Commercial Code financing statement covering the Administrative security interest in the Collateral, naming the Company, as debtor, and the Collateral Agent, as secured party, shall have been duly filed (or shall be in the process of being so duly filed) in all places necessary within the State of Texas.
(f) The Company and the Collateral Agent shall have received from entered into the Borrower Agent a solvency certificate from a Financial Officer of the Parent Borrower Mortgaged Aircraft Operating Agreement, in substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation of the transactions contemplated by the First Amendment on the First Amendment Effective Date) certifying the matters set forth therein after giving effect to this First Amendment and the consummation of the transactions contemplated hereby (including the conversion pursuant to Section 1(a) hereof);
(h) the Administrative Agent shall have received an opinion from Ropes & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and the Extending Lenders; and
(i) the Administrative Agent shall have received a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Subsidiary (if required), and evidence of flood insurance, in the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)Agreement.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Southwest Airlines Co)
Conditions of Effectiveness of this First Amendment. This First Amendment shall become effective on the date when the following conditions shall have been satisfied or waived (such date, the “First Amendment Effective Date”):
(a) Holdings, the Loan PartiesBorrower, each Subsidiary Guarantor, the Administrative Agent Agent, each Revolving Facility Lender, each Issuing Bank, each 2023 Refinancing Term B Lender and the Extending Lenders constituting at least Required Lenders under the ABL Credit Agreement (prior to giving effect to this First Amendment) each 2023 Additional Term B Lender shall have signed duly executed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative AgentAgent (or its designee);
(b) the Borrowers Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this First Amendment), by wire transfer of immediately available funds, (i) all fees and expenses required to JPM in its capacity be paid hereunder or as sole lead arranger for the Extended ABL Revolving Commitments and Extended FILO Commitmentsotherwise agreed, including, without limitation, all fees as have been separately agreedexpenses payable pursuant to the First Amendment Engagement Letter, (ii) to the Administrative Agent, for the ratable account of each Extending Existing Term B Lender, all accrued and unpaid interest on the Existing Term B Loans through (but not including) the First Amendment Effective Date and (iii) to each 2023 Term B Lender, each for its own account, an upfront fee equal to 0.101.00% of the aggregate principal amount of the Extended ABL Revolving Commitments and Extended FILO Commitments held by 2023 Term B Loans of such lender 2023 Term B Lender that are made available on the First Amendment Effective Date (after giving effect Date, whether pursuant to the First Amendment)2023 Refinancing Term B Loan Conversion or as New 2023 Refinancing Term B Loans or 2023 Additional Term B Loans (which may be, (iii) to at the Swingline Lender, the aggregate principal amount option of all outstanding Swingline Loans and all accrued but unpaid interest thereon accruing prior to the First Amendment Effective Date and (iv) to Arrangers, netted against the Administrative AgentNew 2023 Refinancing Term B Loans and/or 2023 Additional Term B Loans made by the New 2023 Refinancing Term B Lenders or 2023 Additional Term B Lenders, all reasonable fees, costs and out-of-pocket expenses, including fees, costs and expenses (including attorneys’ fees and expenses) for advice, assistance, or other representation in connection with the preparation, execution and delivery of this First Amendment to the same extent that such fees and expenses would be payable under, and on the same terms as are set forth in, Section 9.03 of the ABL Credit Agreementapplicable);
(c) on the First Amendment Effective Date immediately prior to and after giving effect to this First AmendmentAmendment (including, without limitation, the incurrence of the 2023 Term B Loans and the application of the proceeds thereof), (i) no Event of Default or Event of Default shall have occurred and be continuing and (ii) the Administrative Agent shall have received from the Borrowers a certificate executed by a Responsible Officer of the Borrower Agent, certifying the foregoing representations and as to the matters warranties set forth in Section 6 hereofthe Loan Documents shall be true and correct in all material respects, in each case, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(d) the Administrative Agent shall have received from the Acknowledgment Borrower a Borrowing Request in accordance with the requirements of Section 2.03 of the Existing Credit Agreement, except that such Borrowing Request may be delivered (i) with respect to the Converted 2023 Refinancing Term B Loans, on the date of the deemed borrowing and Confirmation(ii) with respect to the New 2023 Refinancing Term B Loans and the 2023 Additional Term B Loans, on or prior to 4:00 p.m. (New York City time) on the date of the deemed borrowing or Borrowing, as applicable;
(e) the Administrative Agent shall have received from the Borrower a certificate executed by a Responsible Officer of the Borrower, certifying compliance with the requirements of preceding clause (c);
(f) the Administrative Agent shall have received from the Borrower a solvency certificate from the Borrower (executed on behalf of the Borrower by a Financial Officer of the Borrower) substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of the Borrowers and each other Loan Party;
(i) the assignment fee, if applicable, and other costs and expenses of each Non-Extending Lender with respect to the assignment of its Commitments and any Loans made pursuant thereto shall have been paid in full, (ii) the Commitments and Loans of each Non-Extending Lender shall have been assigned to a Replacement Lender in accordance with Section 2.19(b) of the ABL Credit Agreement and (iii) all accrued and unpaid interest on the Loans of each Non-Extending Lender shall have been paid in full by the assignee thereof to such Non-Extending Lender in accordance with Section 2.19(b) of the ABL Credit Agreement;
(f) there shall have been solvency certificate delivered to the Administrative Agent (Aon the Closing Date pursuant to Section 4.02(h) a certificate, dated as of the First Amendment Effective Date, executed by a Responsible Officer (which shall be deemed for this purpose to include any Secretary or any Assistant Secretary) of each Loan Party certifying (i) that no amendments or modifications have been made to the Organizational Documents of such Loan Party since the same were delivered to the Administrative Agent prior to the First Amendment Effective Date, (ii) that attached thereto are true and correct copies of resolutions of the board of directors, members or other governing body of each Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the ABL Existing Credit Agreement (as amended by this First Amendment) and the Form of Acknowledgment and Confirmation attached as Exhibit A hereto, as applicable, and that such resolutions are in full force and but modified to give effect without modification or amendment and (iii) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment or any other document delivered in connection herewith on behalf of any Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature incurrence of the officer or authorized person executing the certificate in this clause (iii2023 Term B Loans), and (B) good standing certificates as of a recent date for each Loan Party from the jurisdiction in which they are organized;
(g) the Administrative Agent shall have received (i) copies of the Organization Documents of each Loan Party, certified as of a recent date by the appropriate governmental official (or certification from such Loan Party that there has been no change to such Organization Documents since delivered to the Borrower Administrative Agent on the Closing Date), (ii) certificates of a solvency certificate from a Financial Responsible Officer of the Parent Borrower substantially in the form of Exhibit J to the ABL Credit Agreement (with appropriate modifications to reflect the consummation each Loan Party certifying that attached thereto are true and complete copies of the transactions contemplated by resolutions, written consents, or similar action of the board of directions or similar governing body of each such Loan Party authorizing the execution and delivery of the First Amendment on the First Amendment Effective Date) certifying the matters set forth therein after giving effect to and performance of its obligations under this First Amendment and the consummation Amended Credit Agreement and an incumbency certificate identifying the name and title, and bearing the signature, of the Responsible Officer thereof authorized to act as a Responsible Officer in connection with this First Amendment and the transactions contemplated hereby hereby; and (including iii) a certificate of good standing for each Loan Party from the conversion pursuant to Section 1(a) hereof)applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of each such Loan Party;
(h) the Administrative Agent shall have received an opinion from Ropes (i) Xxxxxxxx & Xxxx Xxxxx LLP, special New York counsel to the Loan Parties, (ii) Xxxxx Xxxx LLC, local counsel to the Loan Parties organized under the laws of the states of Missouri, and (iii) Holland & Knight LLP, local counsel to the Loan Parties organized under the laws of the states of Virginia, Georgia, Maryland, Pennsylvania and Florida, an opinion addressed to the Administrative Agent and the Extending LendersLenders and dated the First Amendment Effective Date, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(i) the Administrative Agent shall have received a all documentation and other information required by bank regulatory authorities under applicable “Life of Loanknow-your-customer” Federal Emergency Management Agency Standard Flood Hazard Determination with respect and anti-money laundering rules and regulations including the PATRIOT Act at least three (3) Business Days prior to the Mortgaged Properties First Amendment Effective Date. Notwithstanding anything to the contrary in the foregoing, the parties hereto hereby agree that the amendments and transactions contemplated by this First Amendment (together collectively, the “2023 Refinancing Transactions”) shall be deemed to have been consummated in the following order (with a notice about special flood hazard area status the consummation of each successive 2023 Refinancing Transaction occurring immediately and flood disaster assistanceautomatically after the 2023 Refinancing Transaction immediately preceding it is consummated): (i) first, duly executed the 2023 Refinancing Transactions other than the incurrence of the 2023 Additional Term B Loans and the related 2023 Refinancing Transactions (including the amendments and transactions contemplated by the Borrower or the applicable Subsidiary (if requiredSections 1(b)(y), (c), (d) and evidence (e) of flood insurancethis First Amendment) (such excluded amendments and transactions, in collectively, the event any such Mortgaged Properties or portion thereof is located in a special flood hazard area)“2023 Additional Term B Loan Transactions”) and (ii) second, the 2023 Additional Term B Loan Transactions.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
