CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) This First Amendment shall become effective on the date (the “First Amendment Effective Date”) on which: (i) The Administrative Agent shall have received duly executed and delivered counterparts of this First Amendment that, when taken together, bear the signatures of the Borrower, the Additional Lenders and the Administrative Agent (on its behalf, as well as on behalf of the Exchanging Term Lenders) and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the First Amendment Effective Date immediately prior to the effectiveness of this First Amendment. (ii) On or prior to the First Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request. (iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of June 6, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby. (iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the First Amendment Effective Date and certifying: a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized; b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction; c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the First Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and d) as to the incumbency and specimen signature of each Responsible Officer executing the First Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto). (v) The Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York and California counsel to the Loan Parties. (vi) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the First Amendment Effective Date, 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 have been true and correct in all material respects and as of such earlier date, and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby. (vii) The aggregate proceeds of the Additional Term Loans will be used to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the First Amendment Effective Date to the Additional Term Lenders as of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement. (viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the First Amendment Effective Date that are not party to this First Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this First Amendment) and of which the Borrower has been notified. (ix) In connection with the foregoing the Borrower will have concurrently paid for the ratable account of each of the Lenders under the Credit Agreement, a payment of 1.00% in the aggregate principal amount of the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 under the Credit Agreement.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) This First Amendment shall become effective on the date that each of the following conditions precedent is satisfied or waived in accordance with Section 10.01 of the Credit Agreement (such date, the “First Amendment Effective Date”) on which:):
(ia) The Administrative Agent shall have received duly executed each of the following, each in form and delivered substance reasonably satisfactory to the Administrative Agent and the Lenders:
(i) counterparts of this First Amendment thatexecuted by the Credit Parties (for the avoidance of doubt, when taken together, bear the signatures of the Borrowerexcluding Parent and Merger Sub), the Additional Lenders and the Administrative Agent, in sufficient number as the Administrative Agent (on its behalf, as well as shall request on behalf of the Exchanging Term Lenders;
(ii) and all Guarantors, and the aggregate principal amount copies of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount resolutions of the Existing Term Loans consisting board of Tranche B-1 Term Loans directors, authorized subcommittee thereof, or Tranche B-2 Term Loansother equivalent body of each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) authorizing the execution, delivery and performance by such Credit Party of this First Amendment, certified as applicable outstanding of the First Amendment Effective Date by the Secretary or an Assistant Secretary of such Credit Party;
(iii) a certificate of the Secretary or Assistant Secretary of each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) certifying the names and true signatures of the officers of such Credit Party authorized to execute, deliver and perform this First Amendment;
(iv) the articles or certificate of incorporation or equivalent document of each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) as in effect on the First Amendment Effective Date immediately prior Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or organization;
(v) the bye-laws or equivalent document of each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) as in effect on the First Amendment Effective Date, certified by the Secretary or Assistant Secretary of such Credit Party as of the First Amendment Effective Date;
(vi) a certificate of good standing or equivalent document for each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or organization as of a recent date;
(vii) a compliance certificate for each Insurance Subsidiary (other than Syndicate 5151 at Lloyd’s) from the applicable Department as of a recent date (unless such Department generally does not provide compliance certificates); and
(viii) a written opinion, reasonably acceptable to the effectiveness Administrative Agent in form and substance, (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) from each of this First Amendment(A) Cravath, Swaine & Xxxxx LLP, New York counsel for the Credit Parties, (B) Xxxxxxx (Bermuda) Limited, Bermuda counsel for the Credit Parties and (C) in-house counsel for the Credit Parties.
(iib) On The Administrative Agent shall have received, for the account of each Lender that has consented to this First Amendment on or prior to the First Amendment Effective Date, an amendment fee for each such Lender in an amount equal to 0.25% of the principal amount of outstanding Revolving Commitments of such Lender (as of the First Amendment Effective Date).
(c) The Administrative Agent shall have received a Borrowing Requestbeen paid all costs, fees and expenses (including, without limitation, Attorney Costs of the Administrative Agent and fees) to the extent then due and payable to the Administrative Agent, including those fees payable pursuant to the Fee Letter.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of June 6, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(ivd) The Administrative Agent shall have received a certificate of signed by a Responsible Officer of the Loan Parties dated the First Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy Holdings on behalf of the charter or other similar organizational document of such Loan PartyBorrower, and each amendment thereto, certified (dated as of a date reasonably near the First Amendment Effective Closing Date, (i) as being a true confirming that Holdings and correct copy thereof its Subsidiaries have received all required approvals of the transactions contemplated hereby and by the Secretary other Loan Documents, including the execution, delivery and performance by each Credit Party (for the avoidance of State or other doubt, excluding Parent and Merger Sub) of this First Amendment, from each applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to certifying that each of the date of such certificate conditions precedent specified in paragraphs (e), (f), (g) and (iiih) such Person is duly organized of this Section 4 have been satisfied.
(e) All governmental and regulatory authorizations and third party approvals necessary in good standing under connection with the laws of such jurisdiction;
c) that attached thereto is a true financing contemplated hereby and complete copy of resolutions duly adopted by the Board of Directors continuing operation of the Borrower authorizing Credit Parties (for the execution avoidance of doubt, excluding Parent and delivery of the First Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date Merger Sub) and certifying that such resolutions their Subsidiaries shall have not been modified, rescinded or amended obtained and are be in full force and effect; and.
d(f) as to There will not exist (pro forma for the incumbency and specimen signature effectiveness of each Responsible Officer executing the First Amendment Agreement (together with a certificate of another officer as and the amendments to the incumbency and specimen signature Credit Agreement set forth in Section 1) any “event of the Responsible Officer executing the certificate pursuant hereto)default” under any Material Indebtedness of Holdings or its Subsidiaries.
(vg) The Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York and California counsel to the Loan Parties.
(vi) (A) Each All of the representations and warranties set forth contained in Section 3 by each Credit Party (for the avoidance of doubt, excluding Parent and Merger Sub) shall be true and correct in all material respects on and as of the First Amendment Effective Date; provided that, with the same effect as though made on and as of in each case, such date, except materiality qualifier shall not be applicable to the extent such any representations and warranties expressly relate to an earlier date, that already are qualified or modified by materiality in which case such representations and warranties shall have been true and correct in all material respects and as of such earlier date, and the text thereof.
(Bh) no No Default or Event of Default has shall have occurred and is be continuing both before and immediately after giving effect to the transactions contemplated hereby.
(vii) The aggregate proceeds of the Additional Term Loans will be used to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the First Amendment Effective Date to the Additional Term Lenders as of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit AgreementDate.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the First Amendment Effective Date that are not party to this First Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this First Amendment) and of which the Borrower has been notified.
(ix) In connection with the foregoing the Borrower will have concurrently paid for the ratable account of each of the Lenders under the Credit Agreement, a payment of 1.00% in the aggregate principal amount of the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 under the Credit Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Blue Capital Reinsurance Holdings Ltd.), Credit Agreement (Montpelier Re Holdings LTD)
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) This First Amendment shall become effective on the date when the following conditions shall have been satisfied (or waived by the Revolving Agent) (such date, the “First Amendment Effective Date”) on which:):
(ia) The Administrative the Revolving Agent shall have received duly this First Amendment, executed and delivered counterparts of this First Amendment thatby Holdings, when taken togetherIntermediate Holdings, bear the signatures of the Borrower, each Subsidiary Guarantor, the Additional Administrative Agent, the Revolving Agent, the Collateral Agent, the Revolving Lenders and the Administrative Agent (on its behalf, as well as on behalf of the Exchanging Term Incremental Lenders) and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the First Amendment Effective Date immediately prior to the effectiveness of this First Amendment.;
(iib) On or prior to the First Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of June 6, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible each Loan Party, dated the First Amendment Effective Date signed by the Secretary or any Assistant Secretary of such Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar organizational document of each Loan Parties Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar organizational document of each Loan Party certified as being in full force and effect on the First Amendment Effective Date (or a certification that there has been no amendment to such documents since the Original Closing Date), (ii) resolutions of the board of directors or similar governing body of each Loan Party approving, authorizing and ratifying the execution, delivery and performance of this First Amendment, the Credit Agreement and the other Loan Documents to which it is a party, certified as of the First Amendment Effective Date as being in full force and effect without modification or amendment; and (iii) a good standing certificate dated as of a recent date for each Loan Party from its jurisdiction of organization;
(c) after giving effect to the entry of this First Amendment on the First Amendment Effective Date and the 2020 Incremental Revolving Commitments, no Event of Default shall have occurred and be continuing on the First Amendment Effective Date;
(d) the First Lien Net Leverage Ratio after giving effect to the entry of this First Amendment on the First Amendment Effective and the 2020 Incremental Revolving Commitments, calculated on a Pro Forma Basis as of the most recently completed Measurement Period assuming that the Revolving Facility is fully drawn and the proceeds of the Incremental Revolving Commitments are not included as Net Cash for the purposes of such calculation, is no greater than 2.67:1.00;
(e) the Administrative Agent shall have received a customary certificate dated the First Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy signed on behalf of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof Borrower by the Secretary of State or other applicable Governmental Authority chairman of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate board, the chief executive officer, the president, the treasurer, the chief financial officer or any vice president of the Secretary of State or other applicable Governmental Authority Borrower, certifying on behalf of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying Borrower that (i) the conditions set forth in clauses (c) and (d) of this Section 5 have been satisfied or waived on such amendments are date (other than any certification that any such conditions have been satisfied or waived to the only amendments extent subject to such Person’s charter on file in such office, the satisfaction of the Revolving Agent) and (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the First Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the First Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York and California counsel to the Loan Parties.
(vi) (A) Each of the representations and warranties made by any Loan Party set forth in Section 3 4 of this First Amendment shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the First Amendment Effective Date, Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate related to an earlier date, date in which case such representations representation and warranties shall have been be true and correct in all material respects and as of such earlier date;
(f) the Revolving Agent shall have received a solvency certificate from the chief financial officer or similar financial officer of the Borrower substantially in the form of Exhibit J to the Credit Agreement, which certifies that Holdings and (B) no Default or Event of Default has occurred and is continuing both before its Restricted Subsidiaries, on a consolidated basis, are, and immediately after giving effect to the transactions contemplated hereby.
(vii) The aggregate proceeds entry of the Additional Term Loans will be used to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement this First Amendment on the First Amendment Effective Date to and the Additional Term Lenders as incurrence of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans)2020 Incremental Revolving Commitments, which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.will be, Solvent;
(viiig) The Borrower the Revolving Agent shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement and the making of the Additional Term Loans, if any, have received at least three (A3) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately Business Days prior to the First Amendment Effective Date that are not party (or such shorter period agreed to this First Amendment, if any, by the Revolving Agent in its sole discretion) (i) all indemnities, cost reimbursements documentation and other Obligations (as defined below), if any, then due and owing to such Lenders under information about the Loan Documents Parties reasonably requested by it in writing at least five (5) calendar days prior to the effectiveness of this First AmendmentAmendment Effective Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (ii) and of which a certificate regarding beneficial ownership as required by 31 C.F.R. § 1010.230 with respect to the Borrower has been notified.which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association; and
(ixh) In connection with all fees and expenses due and payable on or prior to the foregoing the Borrower will have concurrently paid for the ratable account of each of the Lenders date hereof under the Credit AgreementAgreement or any other Loan Document, a including reimbursement or payment of 1.00% in all reasonable out-of-pocket expenses required to be reimbursed or paid on or prior to the aggregate principal amount of date hereof by the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 Borrower under the Credit AgreementAgreement or any other Loan Document or engagement letter, shall have been paid.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) This First Amendment shall become effective on the date (the “First Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this First Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional Lenders and Term Lenders, the Administrative Agent (on its behalf, as well as on behalf of the Required Lenders and the Exchanging Term Lenders) and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the First Amendment Effective Date immediately prior to the effectiveness of this First Amendment.;
(ii) On or prior to the First Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of June 6, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the First Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the First Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the First Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York and California counsel to the Loan Parties.
(vi) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the First Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate specifically refer to an earlier datea given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier datedate or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby.;
(viiiii) The Administrative Agent shall have received a customary written opinion of (a) Weil, Gotshal & Xxxxxx LLP, special counsel for the Loan Parties, dated as of the First Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Xxxxx Xxxxxxx, special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the First Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(i) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the First Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) that the Organizational Documents of such Loan Party delivered on the Closing Date to the Administrative Agent have not been amended and are in full force and effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this First Amendment and any other Loan Documents executed in connection with this First Amendment to which such person is a party and, in the case of the Borrower, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this First Amendment and any other Loan Document executed in connection with this First Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(ii) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization; and
(iii) a certificate dated the First Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii);
(v) The aggregate proceeds of the all Additional Term Loans, if any, shall have been applied, concurrently with the exchange of the Exchanged Term Loans will be used with the First Amendment Term Loans, to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the First Amendment Effective Date to the Additional Term Lenders as of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.;
(viiivi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Term Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the First Amendment Effective Date that are not party to this First Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this First Amendment) and of which the Borrower has been notified.; and
(ixvii) In connection The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the First Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the foregoing Borrower relating to the Borrower will have concurrently paid for the ratable account of each of the Lenders under the Credit Agreement, a payment of 1.00% in the aggregate principal amount of the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 under the Credit Agreementtransactions contemplated hereby.
Appears in 1 contract
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) Section 3.1. This First Amendment shall not become effective on until, and shall become effective when, each and every one of the date (the “First Amendment Effective Date”) on whichfollowing conditions shall have been satisfied:
(ia) The Administrative Agent shall have received duly executed and delivered counterparts of this First Amendment thatAmendment, when taken togetherduly executed by the Company, bear the signatures Parent Company and the holders of at least 51% of the Borrower, the Additional Lenders and the Administrative Agent (on its behalf, as well as on behalf outstanding principal of the Exchanging Term Lenders) and all GuarantorsNotes, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal have been delivered to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the First Amendment Effective Date immediately prior to the effectiveness of this First Amendment.Noteholders;
(iib) On or prior to the First Amendment Effective Date, the Administrative Agent Noteholders shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of June 6true, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the First Amendment Effective Date and certifying:
a) that attached thereto is a true correct and complete copy of the charter or other similar organizational document of such Loan PartyAmended and Restated Credit Agreement by and among the Company, the Guarantors party thereto, the financial institutions party thereto, the Bank Agent, PNC Capital Markets, Inc. and RBC Capital Markets, as joint lead arrangers, and each amendment theretoRBC Capital Markets, certified as syndication agent (as of a date reasonably near the “Bank Credit Agreement”); Penn Virginia First Amendment Effective DateAmendment
(c) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of Company shall have delivered a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person form and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes substance satisfactory to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the First Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) Required Holders as to the incumbency capital adequacy and specimen signature of each Responsible Officer executing the First Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature solvency of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York Company and California counsel to the Loan Parties.
(vi) (A) Each of the representations PVR Midstream and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the First Amendment Effective Date, 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 have been true and correct in all material respects and as of such earlier date, and (B) no Default or Event of Default has occurred and is continuing both before and immediately their Subsidiaries after giving effect to the transactions contemplated hereby.by this First Amendment;
(viid) The aggregate proceeds the Noteholders shall have received (i) a copy of the Additional Term Loans will be used to refinance in full all Existing Term Loansresolutions of the Board of Directors of the Parent Company GP authorizing the execution, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms delivery and subject to the conditions set forth herein, including via the assignment performance by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the First Amendment Effective Date to the Additional Term Lenders as of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement Company and the making Parent Company of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the First Amendment Effective Date that are not party to this First Amendment, if anycertified by its Secretary or an Assistant Secretary, all indemnities(ii) a copy of the resolutions of the Board of Directors of the Parent Company GP authorizing execution, cost reimbursements delivery and other Obligations performance by the Company of the Bank Credit Agreement and (iii) a copy of the resolutions of the Board of Directors of the Parent Company GP authorizing the execution, delivery and performance by the applicable Subsidiaries of the Subsidiary Guaranty, certified by its Secretary or an Assistant Secretary;
(e) the representations and warranties of the Company and the Parent Company set forth in Section 2 hereof shall be true and correct on and with respect to the date hereof;
(f) the Noteholders shall have received (i) audited statements of revenue and expenses for the year ended December 31, 2002 and the period from January 1, 2003 through July 2, 2003, for the Cantera Natural Gas LLC midstream assets, (ii) audited statements of operations for the period from June 25, 2003 through December 31, 2003 and for the year ended December 31, 2003 for the Mid Continent Division of Cantera, and (iii) audited year-end balance sheets as defined belowof December 31, 2003 and December 31, 2004 for the Mid Continent Division of Cantera which audited financials shall be accompanied by an unqualified opinion of independent certified public accountants;
(g) the Noteholders shall have received the favorable opinion of Xxxxxx & Xxxxxx L.L.P., special counsel to the Company and the Parent Company, and Xxxxx Xxxxxx, Esq., General Counsel and Vice President of the Company and the Parent Company as to the matters set forth in Sections 2.1(a), if any2.1(b) and 2.1(c) hereof which shall be in form and substance satisfactory to the Required Holders;
(h) the Subsidiaries listed on Schedule A hereto shall have each been added as a Subsidiary Guarantor under the Subsidiary Guaranty and the Noteholders shall have received such documents, then due opinions and owing certificates related thereto as they may reasonably request, including, without limitation,
(1) an executed counterpart of a Guaranty Supplement in respect of the Subsidiary Guaranty binding such Subsidiaries thereto; and
(2) a certificate signed by the President, a Vice President or another authorized Responsible Officer of each of such Subsidiaries making representations and warranties to the effect of those contained in Sections 5.1, 5.2, 5.6 and 5.7 of the Note Purchase Agreements, but with respect to such Lenders under Subsidiaries and the Loan Documents Subsidiary Guaranty; and Penn Virginia First Amendment
(prior 3) such documents and evidence with respect to such Subsidiaries as the Required Holders may reasonably request in order to establish the existence and good standing of such Subsidiaries and the authorization of the transactions contemplated by the Subsidiary Guaranty as the same pertains to such Subsidiaries; and
(4) to the effectiveness extent delivered pursuant to the Bank Credit Agreement, an opinion of counsel satisfactory to the Required Holders to the effect that the Subsidiary Guaranty has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such Subsidiaries enforceable in accordance with its terms, except as an enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles; and
(i) the Company shall have paid the fees and expenses of Xxxxxxx and Xxxxxx LLP, counsel to the Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this First Amendment) and . Upon receipt of which the Borrower has been notified.
(ix) In connection with the foregoing the Borrower will have concurrently paid for the ratable account of each all of the Lenders under the Credit Agreementforegoing, a payment of 1.00% in the aggregate principal amount of the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 under the Credit Agreementthis First Amendment shall become effective.
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Samples: Note Purchase Agreement (Penn Virginia Resource Partners L P)
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. (a) This First Amendment shall become effective on the date (the “First Amendment Effective Date”) on whichwhen each of the following conditions shall have been satisfied:
(ia) The Administrative Agent shall have received duly executed and delivered counterparts no Event of this First Amendment that, when taken together, bear the signatures Default exists as of the Borrower, the Additional Lenders and the Administrative Agent (on its behalf, as well as on behalf of the Exchanging Term Lenders) and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the First Amendment Effective Date immediately prior to the effectiveness of this First Amendment.
(ii) On or prior to the First Amendment Effective Date, both before and immediately after giving effect to this First Amendment;
(b) all of the representations and warranties of the Borrower and each other Loan Party contained in the Credit Agreement and the other Loan Documents (including this First Amendment) are true and correct in all material respects on the First Amendment Effective Date, both before and after giving effect to this First Amendment, with the same effect as though such representations and warranties had been made on and as of the First 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 (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date);
(c) the Borrower, Holdings, the other Guarantors, the Administrative Agent and each 2017 Incremental Term Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent;
(d) the Administrative Agent shall have received signed Lender Consents from the Required Lenders under the Amended Agreement (for the avoidance of doubt, the delivery by each 2017 Incremental Term Lender of its signature page pursuant to preceding clause (c) shall constitute delivery of a Lender Consent for the purpose of such 2017 Incremental Term Lender’s consent to this Amendment);
(e) the Administrative Agent shall have received a Borrowing Request.pdf-copy of an extract from the Netherlands Commercial Register with respect to the Borrower, certified resolutions or other corporate company action, or powers of attorney, if any, as the Administrative Agent may reasonably require duly authorizing the execution, delivery and performance of this First Amendment and 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 the other Loan Documents to which the Borrower is a party or is to be a party on the First Amendment Effective Date;
(iiif) Payment in respect of all fees required to be paid pursuant to the Engagement Letter dated as of June 6, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with Parties, the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received 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 equivalent office in each relevant jurisdiction) or (y) a certificate of a Responsible Officer of each Loan Party dated the First Amendment Effective Date certifying that there has been no change to such organizational documents since last delivered to the Administrative Agent;
(ii) a certificate of a Responsible Officer of each Loan Parties Party dated the First Amendment Effective Date and certifying:
acertifying (A) that (x) attached thereto is a true and complete copy of the charter by-laws or other operating, management, partnership or similar organizational document agreement of such Loan Party, and each amendment thereto, certified (Party as of a date reasonably near in effect on the First Amendment Effective DateDate or (y) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments there has been no change to such Person’s charter on file in such officegoverning documents since last delivered to the Administrative Agent, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
cB) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors or other equivalent governing body of the Borrower such Loan Party authorizing the execution execution, delivery and delivery performance of the this First Amendment Agreement to which it is a party or any and the other document delivered in connection herewith on the First Amendment Effective Date related Loan Documents and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d, (C) to the extent not previously delivered to the Administrative Agent, as to the incumbency and specimen signature of each Responsible Officer officer executing this First Amendment or any other document delivered in connection herewith on behalf of such Loan Party and (D) good standing certificates (to the extent such concept exists in the relevant jurisdiction) for each Loan Party from the jurisdiction in which it is organized, each dated a recent date prior to the First Amendment Agreement Effective Date; and
(together with iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer officer executing the certificate delivered pursuant hereto).to clause (ii) above;
(vg) The the Borrower shall have paid, (i) to the Administrative Agent and the Arrangers any fees and expenses owing to them pursuant to the terms of the Credit Agreement (as amended hereby) and this First Amendment or as otherwise separately agreed in writing in connection with this First Amendment and the related transactions and (ii) to the Administrative Agent, for the ratable account of each Term Lender (each, an “Existing Term Lender”), all accrued but unpaid interest on the Term Loans held by such Existing Term Lender immediately prior to the First Amendment Effective Date;
(h) the Administrative Agent shall have received a Committed Loan Notice in respect of the 2017 Incremental Term Loans;
(i) the Borrower shall have delivered a Note executed by the Borrower in favor of each 2017 Incremental Term Lender that has requested a Note at least two Business Days in advance of the Closing Date;
(j) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying (with reasonably detailed calculations) that the conditions precedent set forth in (x) subclause (iv) of Section 2.14(d) of the Credit Agreement and (y) Section 3(a) and (b) of this First Amendment have been satisfied;
(k) the Administrative Agent shall have received a solvency certificate signed by a Responsible Officer of the Borrower (with appropriate modifications to reflect the consummation of the transactions contemplated by this First Amendment) substantially in the form attached to the Credit Agreement as Exhibit D-2;
(l) the Administrative Agent shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx from (x) Xxxxx Lovells US LLP, special New York and California counsel to the Loan Parties., (y) NautaDutilh New York P.C., Dutch and Curaçao counsel to the Loan Parties and (z) Xxxxxxxx, Xxxxx y Asociados S.C., Mexican counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent; and
(vim) (A) Each of the representations and warranties set forth in Section 3 Borrower shall have provided the Administrative Agent with evidence that the Senior Notes will be true and correct in all material respects on and as of the First Amendment Effective Date, redeemed 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 have been true and correct in all material respects and as of such earlier date, and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby.
(vii) The aggregate proceeds of the Additional Term Loans will be used to refinance in full all Existing 2017 Incremental Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable, other than Exchanged Term Loans, on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the First Amendment Effective Date to the Additional Term Lenders as of the First Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans with the First Amendment Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans, as applicable and in each case under and as defined in the Amended Credit Agreement and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the First Amendment Effective Date that are not party to this First Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this First Amendment) and of which the Borrower has been notified.
(ix) In connection with the foregoing the Borrower will have concurrently paid for the ratable account of each of the Lenders under the Credit Agreement, a payment of 1.00% in the aggregate principal amount of the Existing Term Loans, which are hereby being refinanced, due under Section 2.21 under the Credit Agreement.
Appears in 1 contract
