Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (which, in the case of clauses (f), (g) and (h) below, may be substantially concurrent with the satisfaction of the other conditions specified below and immediately after the incurrence of 2013 Incremental Term Loans on such date): (a) The Administrative Agent shall have received a notice of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by Section 2.03 of the Credit Agreement. (b) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the Borrowers, each of the other Loan Parties, each of the 2013 Incremental Term Loan Lenders, each of the 2013 Incremental Revolving Credit Lenders, each of the 2013 Refinancing Term Loan Lenders and the Administrative Agent. (c) All of the conditions specified in Sections 2.24 and 2.25 of the Credit Agreement (as modified by this Third Amendment) with respect to the incurrence of the 2013 Incremental Term Loans and the 2013 Refinancing Term Loans and the provision of the 2013 Revolving Commitment Increases shall have been satisfied, and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the US Borrower certifying (i) that the conditions precedent set forth in Sections 4.01(b) and (c) of the Credit Agreement have been satisfied on and as of the Third Amendment Effective Date and (ii) as to compliance with the requirements of Sections 2.24 and 2.25 of the Credit Agreement. (d) The Administrative Agent shall have received a legal opinion of Weil, Gotshal & Xxxxxx LLP, special counsel to the Borrowers, addressed to the Lenders, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banks, dated the Third Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent. (e) The Administrative Agent shall have received (i) a certificate from the Chief Financial Officer of the US Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying that, after giving effect to this Third Amendment, the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iii) a closing certificate executed by a Responsible Officer of each Borrower, dated the Third Amendment Effective Date, reasonably acceptable to the Administrative Agent, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each of the Borrowers, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (e)(ii) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment and the performance of the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect. (f) An amount equal to the Net Cash Proceeds from the incurrence of the 2013 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii) of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepayment, as well as any amounts payable pursuant to Section 2.16 of the Credit Agreement, shall have been paid in full. (g) The Borrowers shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16. (h) The US Borrower shall have paid to the Administrative Agent, for the account of each Incremental Revolving Credit Lender, an initial yield payment (the “2013 Revolving Commitment Increase Upfront Fee”) equal to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender on the Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds and, once paid, be non-refundable. (i) The Borrowers, the Loan Parties and the Collateral Agent shall have duly executed and delivered to the Administrative Agent a “Representative Supplement” with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II to the First-Lien Intercreditor Agreement.
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Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of and the first New Term Loan Lenders shall disburse the New Term Loan to be made by it pursuant to Section 1(a) on the date (the “Third Amendment Effective Date”) on which each of when the following conditions shall have been satisfied (whichor waived):
(a) the Administrative Agent (or its counsel) shall have received from the Borrower, Holdings, the Administrative Agent and each New Term Loan Lender counterparts of this Third Amendment signed on behalf of such parties (including by way of facsimile or other electronic transmission);
(b) substantially simultaneously with the making of the New Term Loans, the Borrower shall have paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses (including the reasonable and documented in reasonable detail fees, disbursements and other charges of Xxxxx Xxxx & Xxxxxxxx LLP in connection with this Third Amendment), compensation and other amounts then due and payable pursuant to the Amended and Restated Engagement Letter, dated as of June 8, 2016, by and among the Borrower, Deutsche Bank Securities Inc., Xxxxxxx Sachs Bank USA, Xxxxxxxxx LLC, BMO Capital Markets Corp., Macquarie Capital USA Inc., Nomura Securities International Inc., Mizuho Securities USA Inc. and Guggenheim Securities, LLC, in the case of clauses (f)the costs and out-of-pocket expenses, (g) and (h) below, may be substantially concurrent with to the satisfaction of extent invoiced at least one Business Day prior to the other conditions specified below and immediately after the incurrence of 2013 Incremental Term Loans on such date):
(a) The Administrative Agent shall have received a notice of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by Section 2.03 of the Credit Agreement.
(b) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the Borrowers, each of the other Loan Parties, each of the 2013 Incremental Term Loan Lenders, each of the 2013 Incremental Revolving Credit Lenders, each of the 2013 Refinancing Term Loan Lenders and the Administrative Agent.Third Amendment Effective Date;
(c) All on the Third Amendment Effective Date and after giving effect to this Third Amendment and the making of the conditions specified New Term Loans, (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 Sections 2.24 and 2.25 of this Third Amendment, the Credit Agreement and the other Loan Documents shall be accurate in all material respects (as modified 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 Third Amendment) with respect to Amendment and the incurrence making of the 2013 Incremental New Term Loans and or the 2013 Refinancing Term Loans and the provision application of the 2013 Revolving Commitment Increases shall have been satisfied, and proceeds thereof;
(d) the Administrative Agent shall have received a certificate signed executed by a Responsible Officer of the US Borrower Borrower, certifying (i) that compliance with the conditions precedent set forth in Sections 4.01(b) and requirements of the preceding clause (c);
(e) the Administrative Agent shall have received no fewer than three Business Days prior to the Third Amendment Effective Date a Committed Loan Notice, duly executed by the Borrower, for the Borrowing of the Credit Agreement New Term Loans pursuant to this Third Amendment;
(f) there shall have been satisfied on and delivered to the Administrative Agent (A) certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates, (B) a certificate of a Responsible Officer of the Borrower (which may be contained in the same certificate as the certificate delivered pursuant to the preceding clause (e)), certifying that since the Third 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 Third Amendment Effective Date and (iiC) as to compliance with the requirements of Sections 2.24 and 2.25 a solvency certificate from a Responsible Officer of the Borrower (after giving effect to the New Term Loans) substantially in the form attached to the Credit Agreement.Agreement as Exhibit I; and
(dg) The the Administrative Agent shall have received a legal an opinion of Weil, Gotshal from (i) Xxxxxx & Xxxxxx Xxxxxxx LLP, special New York counsel to the BorrowersLoan Parties and (ii) Faegre Xxxxx Xxxxxxx LLP, addressed special Minnesota counsel to the LendersLoan Parties, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banks, dated the Third Amendment Effective Date, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received (i) a certificate from the Chief Financial Officer of the US Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying that, after giving effect to this Third Amendment, the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iii) a closing certificate executed by a Responsible Officer of each Borrower, dated the Third Amendment Effective Date, reasonably acceptable to the Administrative Agent, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each of the Borrowers, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (e)(ii) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment and the performance of the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect.
(f) An amount equal to the Net Cash Proceeds from the incurrence of the 2013 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii) of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepayment, as well as any amounts payable pursuant to Section 2.16 of the Credit Agreement, shall have been paid in full.
(g) The Borrowers shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16.
(h) The US Borrower shall have paid to the Administrative Agent, for the account of each Incremental Revolving Credit Lender, an initial yield payment (the “2013 Revolving Commitment Increase Upfront Fee”) equal to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender on the Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds and, once paid, be non-refundable.
(i) The Borrowers, the Loan Parties and the Collateral Agent shall have duly executed and delivered addressed to the Administrative Agent a “Representative Supplement” with respect to and the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II to the First-Lien Intercreditor AgreementNew Term Loan Lenders.
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Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of on the first date (the “Third Amendment Effective Date”) on which each of when the following conditions shall have been satisfied (which, or waived in the case of clauses (f), (g) and (h) below, may be substantially concurrent with the satisfaction sole discretion of the other conditions specified below and immediately after the incurrence of 2013 Incremental Term Loans on Administrative Agent) (such date, the “Third Amendment Effective Date”):
(a) The the Borrowers, U.S. Holdings, Holdings, the Administrative Agent, the Collateral Agent and each Revolving Lender party hereto 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 Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent;
(b) (y) the Revolving Credit Commitment of each Non-Consenting Lender shall have been assigned to a Replacement Lender (which may be evidenced by notation of such on Exhibit A hereto, without further execution of any Assignment and Assumptions or similar documentation other than a signature hereto) and (z) to the extent any, accrued and unpaid interest and fees in respect of Obligations owing to Non-Consenting Lenders relating to the Loans and participations held by such Non-Consenting Lender shall have been paid in full to such Non-Consenting Lender;
(c) the Borrowers shall have paid, by wire transfer of immediately available funds, (i) to the Administrative Agent, all fees payable pursuant to any fee or engagement letter related to this Amendment between the Borrowers and Administrative Agent and (ii) all expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Third Amendment Effective Date (including expenses required to be paid pursuant to Section 3 below), in each case to the extent invoiced prior to the Third Amendment Effective Date;
(d) on the Third Amendment Effective Date and after giving effect to this Third Amendment, (i) no Default or Event of Default shall have received a notice occurred and be continuing and (ii) all representations and warranties of the borrowing Borrowers and each other Loan Party contained in Article V of the 2013 Incremental Term Loans Credit Agreement or any other Loan Document shall be true and 2013 Refinancing Term Loans correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as required by Section 2.03 of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and 5.05(b) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement., respectively;
(be) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the Borrowers, each of the other Loan Parties, each of the 2013 Incremental Term Loan Lenders, each of the 2013 Incremental Revolving Credit Lenders, each of the 2013 Refinancing Term Loan Lenders and the Administrative Agent.
(c) All of the conditions specified in Sections 2.24 and 2.25 of the Credit Agreement (as modified by this Third Amendment) with respect to the incurrence of the 2013 Incremental Term Loans and the 2013 Refinancing Term Loans and the provision of the 2013 Revolving Commitment Increases shall have been satisfied, and the Administrative Agent shall have received from the U.S. Borrower, acting in its capacity as Borrower Representative, a certificate signed executed by a Responsible Officer of the US U.S. Borrower, acting in its capacity as Borrower Representative, certifying compliance with the requirements of preceding clause (id);
(f) that the conditions precedent set forth Administrative Agent shall have received from the treasurer or manager of each of the Dutch Borrower and the U.S. Borrower (in Sections 4.01(beach case on a consolidated basis) a solvency certificate (after giving effect to the Third Amendment on the Third Amendment Effective Date and (cthe application of the proceeds thereof) substantially in the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01(a)(vii) of the Credit Agreement Agreement;
(g) the Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit B hereto, executed and delivered by an authorized officer of each of the Borrowers and each other Loan Party;
(h) there shall have been satisfied on delivered to the Administrative Agent (A) copies of resolutions of the board of directors of the Borrowers, U.S. Holdings and Holdings approving and authorizing the execution, delivery and performance of amendments to the Credit Agreement, certified as of the Third Amendment Effective Date by a Responsible Officer as being in full force and effect without modification or amendment and (iiB) as to compliance with good standing certificates, or the requirements of Sections 2.24 equivalent thereof, for the Borrowers, U.S. Holdings and 2.25 of Holdings from the Credit Agreement.jurisdiction in which they are organized;
(di) The the Administrative Agent shall have received a legal opinion of Weil, Gotshal opinions from Xxxxxx & Xxxxxx Xxxxxxx LLP, special legal counsel to the BorrowersBorrowers and Holdings, addressed to the Lenders, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders Collateral Agent and the Issuing Banks, dated the Third Amendment Effective DateRevolving Credit Lenders, in form and substance reasonably satisfactory to the Administrative Agent.;
(ej) The the Administrative Agent shall have received (i) a certificate opinions from Xxxxxxxx Chance LLP, Dutch counsel to the Chief Financial Officer of Administrative Agent, addressed to the US Borrower Administrative Agent, the Collateral Agent and the Revolving Credit Lenders and the other Lenders, in form and substance reasonably satisfactory to the Administrative Agent, certifying that, after giving effect to this Third Amendment, the US Borrower and its Restricted Subsidiaries ;
(on a consolidated basisk) are Solvent, (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iii) a closing certificate executed requested by a Responsible Officer of each Borrower, dated Required Revolving Lender in writing not less than five (5) Business Days prior to the Third Amendment Effective Date, reasonably acceptable the Administrative Agent shall have received, prior to the Administrative Agent, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each of the Borrowers, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (e)(ii) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance effectiveness of this Third Amendment Amendment, all documentation and other information with respect to the performance of Borrowers required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect.PATRIOT Act;
(fl) An amount equal With respect to each improved Mortgaged Property, a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and, if the Net Cash Proceeds from area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” by the incurrence Federal Emergency Management Agency (or any successor agency), evidence of the 2013 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans pursuant to, and in accordance with flood insurance satisfying the requirements of, of Section 2.13(d)(ii6.07(b) of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepayment, as well as any amounts payable pursuant to Section 2.16 of the Credit Agreement, shall have been paid in full.
(gm) The Borrowers Administrative Agent shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16.
(h) The US Borrower shall have paid to the Administrative Agentreceived, for the account of each Incremental Revolving Credit LenderLender party hereto, an initial yield payment (the “2013 Revolving Commitment Increase Upfront Fee”) a commitment fee equal to 0.50(i) 0.10% of the aggregate lesser of (x) the amount of the 2013 Revolving Commitment Increase Credit Commitments of each 2013 Incremental Revolving Credit Lender that was a Revolving Lender immediately prior to the Third Amendment Effective Date (each an “Extending Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender ”) on the Third Amendment Effective Date, which 2013 Date and (y) the amount of the Revolving Commitment Increase Upfront Fee shall be payable in Credit Commitments of such Extending Lender immediately available funds and, once paid, be non-refundable.
(i) The Borrowers, the Loan Parties and the Collateral Agent shall have duly executed and delivered prior to the Administrative Agent a “Representative Supplement” with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective DateDate (such lesser amount, in substantially the form attached as Annex II to “Extended Commitments”) and (ii) 0.30% of the First-Lien Intercreditor Agreementamount of Revolving Credit Commitments of each Lender on the Amendment Effective Date not consisting of Extended Commitments.
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Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which when each of the following conditions set forth in this Section 5 shall have been satisfied (which, in the case of clauses (fii), (gv), (vi) and (hviii) below, may be substantially concurrent with the satisfaction of the other conditions condition specified below and in clause (i) below) (it being understood that the provisions of Section 4 hereof shall become effective immediately after prior to the incurrence provisions of 2013 Incremental Term Loans on such dateSection 2 hereof):
(ai) The Administrative Agent shall have received a notice of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by Section 2.03 of the Credit Agreement.
(b) The Administrative Agent JPMorgan shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the BorrowersBorrower, each of the other Loan Parties, each of the 2013 Incremental 2018 New Replacement Term B Loan Lenders, each of the 2013 Incremental Revolving Credit 2018 Converting Replacement Term B Loan Lenders, each of the 2013 Refinancing Term Loan Existing Required Lenders and the Administrative Agent.
(cii) All The Borrower shall have paid all fees and other amounts due and payable, (a) to JPMorgan pursuant to that certain Fee Letter, dated as of May 15, 2018, by and between the conditions specified Borrower and JPMorgan; and (b) to the extent invoiced, reimbursement or payment of reasonable and documented out-of-pocket expenses in Sections 2.24 and 2.25 of the Credit Agreement (as modified by connection with this Third Amendment) with respect to the incurrence Amendment of the 2013 Incremental Term Loans JPMorgan and the 2013 Refinancing Term Loans Agents (including the Resigning Administrative Agent and the provision Resigning Collateral Agent), including the reasonable fees, charges and disbursements of the 2013 Revolving Commitment Increases shall have been satisfied, counsel to JPMorgan and the Agents (including the Resigning Administrative Agent and the Resigning Collateral Agent), respectively, in each case, as required to be paid or reimbursed pursuant to that certain Engagement Letter (the “Engagement Letter”), dated as of May 15, 2018, by and among the Borrower and the Third Amendment Lead Arrangers, or the Existing Credit Agreement, respectively.
(iii) JPMorgan shall have received a certificate signed by a Responsible Officer customary legal opinion of the US Borrower certifying (i) that Ropes & Xxxx LLP, New York counsel to the conditions precedent set forth in Sections 4.01(b) and (c) of the Credit Agreement have been satisfied on and as of the Third Amendment Effective Date Loan Parties, and (ii) as to compliance with the requirements of Sections 2.24 and 2.25 of the Credit Agreement.
(d) The Administrative Agent shall have received a legal opinion of Weil, Gotshal & Xxxxxx Xxxxxxxxxx LLP, special Ohio counsel to the BorrowersLoan Parties, in each case, addressed to the Lenders, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders Third Amendment Lead Arrangers and the Issuing BanksAgents, dated the Third Amendment Effective Date, Date and in form and substance reasonably satisfactory to the Administrative AgentJPMorgan.
(eiv) The Administrative Agent JPMorgan shall have received (ix) a certificate from the Chief Financial Officer of the US Borrower in form and substance reasonably satisfactory to the Administrative AgentBorrower, certifying that, after giving effect to this Third Amendment, the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (iiy) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iiiz) a closing certificate executed by a Responsible Officer of each the Borrower, dated the Third Amendment Effective Date, reasonably acceptable to the Administrative Agent, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each of the BorrowersBorrower, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (e)(iiy) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each the Borrower as in effect on the Third Amendment Effective Date, Date and (C) a true and complete copy of resolutions duly adopted or written consents duly executed by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment and the performance of the Credit Agreement and the other Loan Documents (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect.
(fv) An amount equal to the Net Cash Proceeds from the incurrence aggregate principal amount of the 2013 Refinancing 2018 New Replacement Term B Loans shall have been applied (immediately following the 2018 Replacement Term B Loan Conversion) to make a mandatory voluntary prepayment of 2016 Replacement Term B-1 Loans not subject to the 2018 Replacement Term B Loan Conversion pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii2.05(a) of the Existing Credit Agreement (as modified herebyAgreement. The payment of accrued and unpaid interest on such 2016 Replacement Term B-1 Loans required pursuant to Section 2.05(a) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepaymentof the Existing Credit Agreement, as well as any amounts payable pursuant to Section 2.16 Article III of the Existing Credit AgreementAgreement (as modified hereby), shall have been paid in fullbe made pursuant to clause (vi) below.
(gA) The Borrowers shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16.
(h) The US Borrower shall have paid to the Administrative Agent, for the ratable account of each Incremental Revolving Credit Lender, an initial yield payment (the “2013 Revolving Commitment Increase Upfront Fee”) equal Lender holding 2016 Replacement Term B-1 Loans immediately prior to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender on the Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds and, once paid, be non-refundable.
(i) The Borrowers, the Loan Parties and the Collateral Agent shall have duly executed and delivered to the Administrative Agent a “Representative Supplement” all accrued but unpaid interest with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II all 2016 Replacement Term B-1 Loans (irrespective of whether such 2016 Replacement Term B-1 Loans are subject to the First-Lien Intercreditor Agreement.2018 Replacement Term B Loan Conversion), whether or not such accrued amounts are otherwise then due and payable pursuant to the terms of the Existing Credit Agreement and (B) the Borrower shall have paid in full any amounts payable pursuant to Article III of the Existing Credit Agreement (as modified hereby) in connection with the repayment of the 2016 Replacement Term B-1
Appears in 1 contract
Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of on the first date when the following conditions shall have been satisfied or waived (such date, the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (which, in the case of clauses (f), (g) and (h) below, may be substantially concurrent with the satisfaction of the other conditions specified below and immediately after the incurrence of 2013 Incremental Term Loans on such date):
(a) The Holdings, the Borrower Agent and each Additional Borrower, and the Administrative Agent, shall have duly executed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent shall have received a notice of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by Section 2.03 of the Credit Agreement.(or its designee);
(b) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the Borrowers, each of the other Loan Parties, each of the 2013 Incremental Term Loan Lenders, each of the 2013 Incremental Revolving Credit Lenders, each of the 2013 Refinancing Term Loan Lenders and the Administrative Agent.
(c) All of the conditions specified in Sections 2.24 and 2.25 of the Credit Agreement (as modified by this Third Amendment) with respect to the incurrence of the 2013 Incremental Term Loans and the 2013 Refinancing Term Loans and the provision of the 2013 Revolving Commitment Increases shall have been satisfied, and the Administrative Agent shall have received (i) copies of the Organization Documents of each Additional Borrower, certified as of a certificate signed recent date by the appropriate governmental official (or certification from such Additional Borrower that there has been no change to such Organization Documents since mostly recently delivered to the Administrative Agent), (ii) certificates of a Responsible Officer of the US each Additional Borrower certifying (i) that the conditions precedent set forth in Sections 4.01(b) attached thereto are true and (c) complete copies of the Credit Agreement have been satisfied on resolutions, written consents, or similar action of the board of directions or similar governing body of each such Additional Borrower authorizing the execution and as delivery of the Third Amendment Effective Date and performance of its obligations under this Third Amendment and the 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 Third Amendment and the transactions contemplated hereby; and (iiiii) as to compliance with a certificate of good standing for each Additional Borrower from the requirements of Sections 2.24 and 2.25 applicable Governmental Authority of the Credit Agreement.jurisdiction of incorporation, organization or formation of each such Additional Borrower;
(dc) The the Administrative Agent shall have received a legal opinion of Weil, Gotshal from (i) Kxxxxxxx & Xxxxxx Exxxx LLP, special counsel to the BorrowersAdditional Borrowers and, (ii) Holland & Knight LLP, local counsel to the Additional Borrower organized under the laws of the state of Florida, an opinion addressed to the Lenders, Administrative Agent and the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banks, dated the Third Amendment Effective Date, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent.;
(d) the Administrative Agent and each Lender that has requested in writing any such information shall have received all documentation and other information in respect of each Additional Borrower (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Borrower) required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and Beneficial Ownership Regulations, at least three (3) Business Days prior to the Third Amendment Effective Date;
(e) The Administrative Agent shall have received (i) a certificate from on the Chief Financial Officer of the US Borrower in form Third Amendment Effective Date, immediately prior to and substance reasonably satisfactory to the Administrative Agent, certifying that, after giving effect to this Third Amendment, no Event of Default or Default shall have occurred and be continuing; and
(f) the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (ii) a certificate of good standing (or subsistence) with respect to each Loan Party Administrative Agent shall have received from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iii) Borrowers a closing certificate executed by a Responsible Officer of each Borrower, dated certifying (i) compliance with the Third Amendment Effective Date, reasonably acceptable to requirements of preceding clause (e) and (ii) the Administrative Agent, certifying as to the incumbency and specimen signature joinder of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each of the Borrowers, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (e)(ii) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Additional Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment and the performance of party hereto is permitted under the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effectDocuments.
(f) An amount equal to the Net Cash Proceeds from the incurrence of the 2013 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii) of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepayment, as well as any amounts payable pursuant to Section 2.16 of the Credit Agreement, shall have been paid in full.
(g) The Borrowers shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16.
(h) The US Borrower shall have paid to the Administrative Agent, for the account of each Incremental Revolving Credit Lender, an initial yield payment (the “2013 Revolving Commitment Increase Upfront Fee”) equal to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender on the Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds and, once paid, be non-refundable.
(i) The Borrowers, the Loan Parties and the Collateral Agent shall have duly executed and delivered to the Administrative Agent a “Representative Supplement” with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II to the First-Lien Intercreditor Agreement.
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Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Conditions of Effectiveness of this Third Amendment. This Third Amendment shall become effective as of on the first date (the “Third Amendment Effective Date”) on which each of when the following conditions shall have been satisfied (which, in the case of clauses (f), (g) and (h) below, may be substantially concurrent with the satisfaction of the other conditions specified below and immediately after the incurrence of 2013 Incremental Term Loans on such date, the “Third Amendment Effective Date”):
(a) The Lead Borrower, the Administrative Agent, the Third Amendment Arranger, the 2017 Replacement USD Term Loan Lenders and Lenders (after giving effect to the 2017 Replacement USD Loans and the repayment of the 2016 Replacement USD Term Loans) constituting Required Lenders shall have signed a counterpart hereof (whether the same or different counter-parts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent and Third Amendment Arranger;
(b) the Lead Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this Third Amendment), by wire transfer of immediately available funds, (i) to Third Amendment Arranger, all fees payable pursuant to the Third Amendment Engagement Letter, (ii) to the Administrative Agent, for the ratable account of each Existing Lender, all accrued but unpaid interest on the 2017 Refinanced USD Term Loans through the Third Amendment Effective Date;
(c) the Administrative Agent and the Third Amendment Arranger shall have received from the Lead Borrower a notice Borrowing Request, such Borrowing Request to be delivered not later than 12:00pm New York City Time at least one Business Day prior to the requested date of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by (notwithstanding any contrary requirements in Section 2.03 of the Credit Agreement.
(b) The Administrative Agent shall have received duly executed counterparts hereof that), when taken together, bear the signatures of the Borrowers, each of the other Loan Parties, each of the 2013 Incremental Term Loan Lenders, each of the 2013 Incremental Revolving Credit Lenders, each of the 2013 Refinancing Term Loan Lenders and the Administrative Agent.
(c) All of the conditions specified otherwise delivered in Sections 2.24 and 2.25 accordance with Section 2.03 of the Credit Agreement Agreement;
(as modified by d) on the Third Amendment Effective Date immediately prior to giving effect to the Third Amendment and after giving effect to this Third Amendment) with respect to the incurrence of the 2013 Incremental Term Loans and the 2013 Refinancing Term Loans and the provision of the 2013 Revolving Commitment Increases shall have been satisfied, and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the US Borrower certifying (i) that the conditions precedent set forth in Sections 4.01(bno Default under Section 7.01(a), 7.01(f) and (cor 7.01(g) of the Credit Agreement have been satisfied or Event of Default shall exist and (ii) each of the representations and warranties set forth in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Third Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (iiy) any representation or warranty that is qualified as to compliance with the requirements of Sections 2.24 “materiality,” “Material Adverse Effect” or similar language shall be true and 2.25 of the Credit Agreement.
(d) The Administrative Agent shall have received a legal opinion of Weil, Gotshal & Xxxxxx LLP, special counsel to the Borrowers, addressed to the Lenders, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banks, dated the Third Amendment Effective Date, correct in form and substance reasonably satisfactory to the Administrative Agent.all respects on such date);
(e) The the Administrative Agent and the Third Amendment Arranger shall have received (i) a certificate from the Chief Financial Officer of the US Lead Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying that, after giving effect to this Third Amendment, the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (iii) a closing certificate executed by a Responsible Officer of each the Lead Borrower, dated certifying compliance with the requirements of preceding clause (d);
(f) the Administrative Agent and the Third Amendment Arranger 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 Lead Borrower and each Subsidiary Guarantor;
(g) the Administrative Agent and the Third Amendment Arranger shall have received from the Lead Borrower a solvency certificate from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Lead Borrower (after giving effect to the incurrence of the 2017 Replacement USD Term Loans on the Third Amendment Effective Date, reasonably acceptable Date and the application of the proceeds thereof) substantially in the form of Exhibit M to the Credit Agreement;
(h) the Administrative Agent, certifying as to Agent and the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching Arranger shall have received (Ai) either (x) a true and complete copy of the certificate or articles of incorporation (or other applicable charter equivalent organizational document) of each of the Borrowers, including all amendments thereto, as in effect on the Third Amendment Effective Dateof each Loan Party, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction state of its organizationorganization or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate of the secretary or assistant secretary of each Loan Party dated the Third Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party as in effect on the Third Amendment Effective Date and at all times since a date prior to the 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, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other equivalent governing body of such Loan Party authorizing the execution, delivery and performance of this Third Amendment and/or the Acknowledgement and Confirmation delivered pursuant to clause (e) above and that such resolutions have not been modified, rescinded or amended and are in full force and 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 thereto shown on the certificate of good standing furnished pursuant to clause (e)(iiE) abovebelow), (BD) a true and complete copy of the by-laws (or other applicable operating agreements) of each Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment and the performance of the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect.
(f) An amount equal to the Net Cash Proceeds from the incurrence of the 2013 Refinancing Term Loans shall have been applied to make a mandatory prepayment of Term Loans pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii) of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, fees and premiums (if any) with respect to all Term Loans subject to such prepayment, as well as any amounts payable pursuant to Section 2.16 of the Credit Agreement, shall have been paid in full.
(g) The Borrowers shall have prepaid all outstanding 2013 Extended Revolving Loans on or prior to the date hereof, which prepayment shall be accompanied by accrued interest on the 2013 Extended Revolving Loans and any costs incurred by any Lender in accordance with Section 2.16.
(h) The US Borrower shall have paid extent not previously delivered to the Administrative Agent, for as to the account incumbency and specimen signature of each Incremental Revolving Credit Lender, an initial yield payment officer executing this Third Amendment or any other document delivered in connection herewith on behalf of such Loan Party and (E) good standing certificates for each Loan Party from the “2013 Revolving Commitment Increase Upfront Fee”) equal to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable tojurisdiction in which it is organized, each such Incremental Revolving Credit Lender on dated a recent date prior to the Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds Date; and (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate delivered pursuant to clause (ii) above; and, once paid, be non-refundable.
(i) The Borrowers, the Loan Parties and the Collateral Administrative Agent shall have duly received a Promissory Note executed and delivered to by the Administrative Agent Lead Borrower in favor of each 2017 Replacement USD Term Loan Lender requesting a “Representative Supplement” with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II to the First-Lien Intercreditor AgreementPromissory Note.
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Conditions of Effectiveness of this Third Amendment. This (a) Sections 1, 2(a), 2(b), 3, 4(a), 5, 6, 7, 8, 9, 10, 11 and 12 of this Third Amendment shall become effective as of the first date (the “Initial Third Amendment Effective Date”) on which when each of the following conditions set forth in this Section 4(a) shall have been satisfied (which, in the case of clauses clause (f), (g) and (hii) below, may be substantially concurrent with the satisfaction of the other conditions condition specified below and immediately after the incurrence of 2013 Incremental Term Loans on such datein clause (i) below):
(a) The Administrative Agent shall have received a notice of the borrowing of the 2013 Incremental Term Loans and 2013 Refinancing Term Loans as required by Section 2.03 of the Credit Agreement.
(bi) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the BorrowersBorrower, each of the other Loan Parties, each of the 2013 Incremental Term Loan Revolving Lenders and each Issuing Lender.
(ii) The Borrower shall have paid all costs, fees and other amounts due and payable to the Agents and the Lenders, including, to the extent invoiced, reimbursement or payment of reasonable and documented out-of-pocket expenses in connection with this Third 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 Credit Agreement.
(iii) On the Initial Third Amendment Effective Date and after giving effect to this Third Amendment, (A) no Default or Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Initial Third Amendment Effective Date and (B) each of the 2013 Incremental Revolving Credit Lenders, each 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 2013 Refinancing Term Loan Lenders Initial Third Amendment Effective Date (except to (I) the extent made as of a specific date, in which case such representation and the Administrative Agentwarranty 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).
(civ) All of the conditions specified in Sections 2.24 and 2.25 of the Credit Agreement (as modified by this Third Amendment) with respect to the incurrence of the 2013 Incremental Term Loans and the 2013 Refinancing Term Loans and the provision of the 2013 Revolving Commitment Increases shall have been satisfied, and the The Administrative Agent shall have received from the Borrower a certificate signed executed by a Responsible Officer of the US Borrower Borrower, certifying compliance with (iA) that the conditions precedent set forth in Sections 4.01(brequirements of the immediately preceding clause (iii) and (c) of the Credit Agreement have been satisfied on and as of the Third Amendment Effective Date and (iiB) as to compliance with the requirements of Sections 2.24 and 2.25 Section 11.1 of the Credit AgreementAgreement relating to Replacement Facilities and compliance with Section 3.16 of the Credit Agreement relating to Incremental Revolving Commitments.
(dv) The Administrative Agent shall have received a the legal opinion of Weil, Gotshal & Xxxxxx LLP, special counsel to the Borrowers, addressed to the Lenders, the 2013 Incremental Term Loan Lenders, the 2013 Refinancing Term Loan Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banksopinions, dated the Initial Third Amendment Effective Date, in form of Xxxxxxxx & Xxxxxxxx LLP and substance Xxxxx Lord LLP, counsel to the Borrower and its Subsidiaries, as applicable, reasonably satisfactory acceptable to the Administrative Agent.
(evi) The Administrative Agent shall have received (ix) a solvency certificate from substantially in the Chief Financial Officer form of Exhibit I-2 to the Credit Agreement, executed as of the US Borrower in form and substance reasonably satisfactory to Initial Third Amendment Effective Date by the Administrative Agent, certifying that, after giving effect to this Third Amendment, chief financial officer of the US Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (iiy) a certificate of good standing (or subsistence) each Loan Party, dated as of the Initial Third Amendment Effective Date, substantially in the form of Exhibit F-2 to the Credit Agreement, with respect to appropriate insertions and attachments including the certificate of incorporation of each Loan Party from certified by the Secretary relevant authority of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party (or a certification from the applicable Loan Party that there has been no change to such organizational documents since March 31, 2017), good standings from the applicable secretary of state of organization of each Loan Party) and (iii) , a closing certificate executed by of resolutions or other action, incumbency certificates of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Third Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Initial Third Amendment Effective Date.
(b) Sections 2(c), 2(d) and 4(b) of this Third Amendment shall become effective as of the first date (the “Subsequent Third Amendment Effective Date”) when each Borrowerof the conditions set forth in this Section 4(b) shall have been satisfied:
(i) The Initial Third Amendment Effective Date shall have occurred.
(ii) Prior to 12:00 Noon, dated New York City time on the date that is three (3) Business Days prior to the Subsequent Third Amendment Effective Date, reasonably acceptable to the Administrative Agent, certifying as Agent shall have received a notice of prepayment for a prepayment of 2017 Replacement Term Loans in an aggregate principal amount equal to the incumbency and specimen signature of each officer of a Loan Party executing this Third Amendment or any other document delivered $400,000,000 in connection herewith on behalf of any Loan Party and attaching (Aaccordance with Section 4.1(a) a true and complete copy of the certificate Credit Agreement.
(iii) The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of incorporation (or other applicable charter document) of the Borrower, each of the Borrowersother Loan Parties, including all amendments thereto, as in effect on the Third Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) each of the jurisdiction of its organization2017 New Replacement Term B-2 Lenders, that has not been amended since the date each of the last amendment thereto shown on 2017 Converting Replacement Term B-2 Lenders, the certificate of good standing furnished pursuant to clause (e)(ii) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Borrower as in effect on the Third Amendment Effective Date, and (C) a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Third Amendment Administrative Agent and the performance of the Credit Agreement (as amended by this Third Amendment) and the other Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effectCollateral Agent.
(fiv) An amount equal to the Net Cash Proceeds from the incurrence of the 2013 Refinancing portion of the 2017 New Replacement Term B-2 Loans to be funded by the 2017 New Replacement Term B-2 Loan Lenders, less the sum of all accrued but unpaid interest with respect to the Term Loans as of the Initial Third Amendment Effective Date, shall have been applied (immediately following the consummation of the 2017 Replacement Term B-2 Loan Conversion) to make a mandatory voluntary prepayment of Term Loans not subject to the 2017 Replacement Term B-2 Loan Conversion (including, for the avoidance of doubt, with respect to any 2017 Converting Replacement Term B-2 Loan Lender, the amount (if any) by which such 2017 Converting Replacement Term B-2 Loan Lender’s Allocated Replacement Term B-2 Loan Conversion Amount is less than the outstanding principal amount of its Term Loans immediately prior to the consummation of the 2017 Replacement Term B-2 Loan Conversion) pursuant to, and in accordance with the requirements of, Section 2.13(d)(ii) 4.1 of the Credit Agreement (as modified hereby) and all accrued but unpaid interest, interest and fees and premiums (if any) with respect to all Term Loans (irrespective of whether such Term Loans are subject to the 2017 Replacement Term B-2 Loan Conversion and whether such prepaymentaccrued amounts are otherwise then due and payable by the terms of the Credit Agreement), as well as any amounts payable pursuant to Section 2.16 4.11 of the Credit AgreementAgreement (as modified hereby), shall have been paid in full.
(gv) The Borrowers Borrower shall have prepaid all outstanding 2013 Extended Revolving Loans on or delivered to each 2017 Replacement Term B-2 Loan Lender requesting the same at least three Business Days prior to the date hereofof this Third Amendment, which prepayment shall be accompanied by accrued interest on a promissory note in the 2013 Extended Revolving amount of such Lender’s 2017 Replacement Term B-2 Loans and any costs incurred by any Lender substantially in accordance with Section 2.16the form of Exhibit E-1 to the Credit Agreement.
(hc) The US Borrower Sections 2(e) and 4(c) of this Third Amendment shall have paid to become effective as of the Administrative Agent, for the account of each Incremental Revolving Credit Lender, an initial yield payment first date (the “2013 Revolving Commitment Increase Upfront Fee”) equal to 0.50% of the aggregate amount of the 2013 Revolving Commitment Increase of each 2013 Incremental Revolving Credit Lender, with each such payment to be earned by, and payable to, each such Incremental Revolving Credit Lender on the Additional Third Amendment Effective Date, which 2013 Revolving Commitment Increase Upfront Fee shall be payable in immediately available funds ” and, once paidtogether with the Initial Third Amendment Effective Date and the Subsequent Amendment Effective Date, be non-refundable.the “Third Amendment Effective Date”) when each of the conditions set forth in this Section 4(c) shall have been satisfied:
(i) The BorrowersSubsequent Third Amendment Effective Date shall have occurred.
(ii) 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, the Loan Parties Lenders constituting the New Required Lenders, the Administrative Agent and the Collateral Agent shall have duly executed and delivered to the Administrative Agent a “Representative Supplement” with respect to the First-Lien Intercreditor Agreement, dated the Third Amendment Effective Date, in substantially the form attached as Annex II to the First-Lien Intercreditor AgreementAgent.
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