Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which: (i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment. (ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request. (iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby. (iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying: a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized; b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction; c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto). (v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement. (viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, Holdings, the Additional 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.;
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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) Ropes & Xxxx LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Babst, Calland, Xxxxxxxx and Zomnir, P.C., special counsel for the Borrower and any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is a party and, in the case of the Borrower, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));
(2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii); and
(4) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(v) The aggregate proceeds of 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 Second 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.;
(viiivi) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Term Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified; and
(vii) The Repricing Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated hereby.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (PQ Group Holdings Inc.)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become remain effective only if each of the following conditions is satisfied on the date or before 5:00PM (the “Second Amendment Effective Date”) Boston Time), on whichor before December 14, 1999:
(i1) The Administrative Agent shall have received duly executed and delivered counterparts An original counterpart of this Second Amendment thatis fully executed by each Borrower and delivered to the Agent.
(2) An original replacement Revolving Credit Note, when taken togetherpayable to each Lender having an increased Dollar Commitment on account of this Second Amendment and reflecting, bear respectively, the signatures entire amount that Lender's Commitment, is fully executed by each Borrower and delivered to the Agent.
(3) Payment in full to the Agent of an Amendment Fee of $300,000.00, which Amendment Fee shall be fully earned as of the Borrowerdate hereof (with the Borrower hereby acknowledging that the Borrower shall not be entitled to any credit, rebate, or repayment of the Additional Lenders Amendment Fee, or other fee previously earned by the Agent or any Lender pursuant to this Agreement, notwithstanding any termination of this Agreement or suspension or termination of the Agent's and any Lender's respective obligation to make loans and advances hereunder).
(4) Payment in full to the Agent of an additional Agent's Fee as specifically provided in a certain Fee Letter dated December 3, 1999 between the Borrower and the Administrative Agent, which Agent's Fee shall be fully earned as of the date hereof (with the Borrower hereby acknowledging that the Borrower shall not be entitled to any credit, rebate, or repayment of the Agent's Fee, or other fee previously earned by the Agent or any Lender pursuant to this Agreement, notwithstanding any termination of this Agreement or suspension or termination of the Agent's and any Lender's respective obligation to make loans and advances hereunder).
(on its behalf5) Receipt by the Agent, as well as for the account of the Lenders, of each of the following:
(1) A Certificate setting forth the text of the resolutions adopted by the Directors of each Borrower authorizing that Borrower's execution of this Second Amendment and attesting to the authority of the persons who executed the Second Amendment on behalf of the Exchanging Term Lendersthat Borrower.
(2) and all Guarantors, and the aggregate principal amount An opinion of the Exchanged Term Loans and the Additional Term Loans shall be equal counsel to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, Borrower as applicable outstanding on the Second Amendment Effective Date immediately prior to the due execution and effectiveness of this Second AmendmentAmendment (which opinion is subject only to the same qualifications as had been included in the opinion delivered by that counsel at the initial execution of the Loan Agreement).
(ii3) Not later than 11 a.m.A Certificate of corporate good standing, New York City timewith respect to each Borrower, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof issued by the Secretary of State or other applicable Governmental Authority of the jurisdiction State in which that Borrower was organized.
(4) Certificates of due qualification, in good standing, issued by the Secretary(ies) of State of each State in which the nature of each Borrower's business conducted or assets owned could require such qualification.
(5) Such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(6) Certificates executed on behalf of the Borrowers by the Chief Executive Officer and the Chief Financial Officer of the Parent and stating that the representations and warranties made by the Borrowers to the Agent and the Lenders in the Loan Party is organized;
b) that attached thereto is a Documents are true and complete copy in all material respects as of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate Certificate (except as shall be specifically noted in such Certificate), and that no event has occurred which is or which, solely with the giving of notice or passage of time (iiior both) such Person is duly organized and in good standing under the laws would be an Event of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modifiedDefault. Such Certificates, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent extent applicable, shall have received a customary legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York and California counsel also include replacement or supplemental Exhibits to the Loan Parties.
(vi) (A) Each Agreement with respect to any changes made since the establishment of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 herebyLoan.
(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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 1 contract
Samples: Loan and Security Agreement (Sports Authority Inc /De/)
Conditions to Effectiveness of this Second Amendment. (a) Section 2.1. This Second Amendment shall become effective on the date that the following conditions have been satisfied or waived (the “Second Amendment Effective Date”):
(a) on whichthe Noteholders (or their special counsel) shall have received executed counterparts of this Second Amendment, duly executed by the Company;
(b) the Noteholders (or their special counsel) shall have received executed Amended Notes, duly executed by the Company;
(c) the Noteholders (or their special counsel) shall have received executed counterparts of the Affiliate Guaranty, duly executed by the Company and the Guarantors;
(d) the Company shall have paid each Noteholder an amount equal to 0.25% of the principal amount of the Notes held by such Noteholder; provided that the Noteholders (or their special counsel) shall have provided wire transfer instructions to the Company at least 3 Business Days prior to the Effective Date;
(e) the Noteholders (or their special counsel) shall have received:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment thatAn Officer’s Certificate, when taken together, bear dated 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) the representations and warranties of the Company in Section 3 of this Second Amendment and in Section 5 of the Amended and Restated Note Purchase Agreement are correct as of the Effective Date (or if such amendments are the only amendments representation or warranty is expressly stated to have been made as of a specific date, as of such Person’s charter on file in such officespecific date), (ii) such Person has paid the Company shall have performed and complied with all franchise taxes to the date of such certificate material agreements and conditions contained in this Second Amendment and (iii) such Person is duly organized and in good standing under after giving effect to the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors issue of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modifiedAmended Notes, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 shall have occurred and is continuing both before be continuing; and
(ii) Copies of the resolutions of the board of directors of the Company authorizing the execution, delivery and immediately after giving effect performance by the Company of its obligations under this Second Amendment, the Amended and Restated Note Purchase Agreement and the Amended Notes, certified by its Secretary or an Assistant Secretary; and
(iii) A good standing certificate or similar certificate dated a date reasonably close to the transactions contemplated hereby.Effective Date from the jurisdiction of formation of the Company; and
(iv) A customary certificate of the Company certifying the names and true signatures of the officers of the Company, as applicable, authorized to sign this Second Amendment and the other documents to be delivered hereunder; and
(v) A certificate of an officer of each Guarantor, dated the Effective Date, certifying that (i) the representations and warranties of such Guarantor in Section 5 of the Affiliate Guaranty is correct as of the Effective Date, and (ii) such Guarantor shall have performed and complied with all material agreements and conditions contained in this Second Amendment; and
(vi) Copies of the resolutions of the board of directors of each Guarantor authorizing the execution, delivery and performance by such Guarantor of its obligations under the Affiliate Guaranty, certified by its Secretary or an Assistant Secretary; and
(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 A good standing certificate or Tranche B-2 Term Loans, as applicable (other than Exchanged Term Loans), on the terms and subject similar certificate dated a date reasonably close to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the Second Amendment Effective Date to from the Additional Lenders as jurisdiction of the Second Amendment Effective Date formation of such Existing Term Loans (other than Exchanged Term Loans)each Guarantors, which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.if applicable; and
(viii) The Borrower shall haveA customary certificate of each Guarantor certifying the names and true signatures of the officers of such Guarantor, concurrently with as applicable, authorized to sign the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans Affiliate Guaranties and the making other documents to be delivered hereunder; and
(ix) A favorable opinion letter of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount General Counsel of the Existing Term Loans consisting of Tranche B-1 Term Loans Company and the Guarantors 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 legal counsel to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements Company and other Obligations (as defined below), if any, then due the Guarantors in form and owing to such Lenders under the Loan Documents (prior substance reasonably satisfactory to the effectiveness Noteholders (or their special counsel); and
(x) copies of this Second Amendmentthe forms of (A) the Bank Credit Agreement, attached hereto as Exhibit 1.2, (B) the First Amendment to the 2012 Note Purchase Agreements, attached hereto as Exhibit 1.3 and (C) the First Amendment to the 2008 Note Purchase Agreements, attached hereto as Exhibit 1.4; and
(f) the Noteholders (or the special counsel) shall have received a copy of which the Borrower has been notifiedform of payoff letter from KeyBank National Association evidencing the termination of the Intercreditor Agreement.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on upon the date satisfaction of the following conditions precedent concurrently with or prior to the making of the Tranche D Term Loans (such date, the “"Second Amendment Effective Date”) on which:"):
(ia) The Administrative Agent shall have received duly executed and delivered (i) counterparts of this Second Amendment that, when taken together, bear the signatures duly executed and delivered by each of the Borrower, each of the Additional Lenders Subsidiary Guarantors and the Administrative Agent Agent, and (on its behalfii) a Lender Consent substantially in the form of Annex I hereto (the "Lender Consent"), as well as on behalf duly executed and delivered by each of the Exchanging Tranche D Term Loan Lenders) and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(ivb) The Administrative Agent and the Tranche D Term Loan Lenders shall have received a certificate such legal opinions as are customary for transactions of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter this type or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date they may reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto)request.
(vc) The Administrative Agent shall have received a customary legal opinion of XxxxxxPrior to and after giving effect to this Second Amendment, Xxxx & Xxxxxxxx LLP, special New York and California counsel to the Loan Parties.
(vi) (A) Each each of the representations and warranties set forth made by any Loan Party in Section 3 or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect date hereof as though if made on and as of such date, except ; provided that the references to the extent such representations and warranties expressly relate to an earlier date, Credit Agreement in which case such representations and warranties shall have been true and correct in all material respects and be deemed to refer to the Credit Agreement as of such earlier date, and amended pursuant to this Second Amendment.
(Bd) no No Default or Event of Default has shall have occurred and is be continuing both before and immediately on the date hereof prior to or after giving effect to the transactions contemplated hereby.
(viie) The aggregate proceeds Administrative Agent shall have received such documents and other instruments as are customary for transactions of this type or as the Additional Administrative Agent may reasonably request, including with respect to the Mortgages, such documents, title insurance policies and endorsements as the Administrative Agent deems necessary or advisable to protect the validity and priority of any Lien created by such Mortgages.
(f) The Borrower shall have paid to the Administrative Agent all outstanding fees, costs and expenses invoiced to the Borrower owing on the date hereof pursuant to the Credit Agreement or this Second Amendment.
(g) The Tranche B Term Loans will be used to refinance in full all Existing Term Loans, consisting of and Tranche B-1 C 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 outstanding on the Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently refinanced in full with the exchange of Exchanged Term Loans consisting proceeds of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 D Term Loans or converted into Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing D Term Loans consisting at the request of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as the applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notifiedLender.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Day International Group Inc)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on whichwhen each of the following conditions shall have been satisfied:
(ia) The Administrative Agent shall have received duly executed and delivered counterparts no Event of this Second 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, both before and immediately after giving effect to Second 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 Second Amendment) are true and correct in all material respects on the Second Amendment Effective Date, both before and after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects 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 2018 Incremental Term Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent;
(d) the Administrative Agent shall have received signed Lender Consents from (i) the Required Lenders under the Amended Credit Agreement with respect to the amendment to the Credit Agreement in Section 1(n) hereof (for the avoidance of doubt, the delivery by each 2018 Incremental Term Lender of its signature page pursuant to preceding clause (c) shall constitute delivery of a Lender Consent for the purpose of such 2018 Incremental Term Lender’s consent to the amendment to the Credit Agreement in Section 1(n) hereof) and (ii) the Existing Term Lenders (after giving effect to the replacement of any Non-Consenting Lender pursuant to Section 3.07 of the Credit Agreement) under the Amended Agreement with respect to the amendment to the Credit Agreement in Section 1(d) hereof (for the avoidance of doubt, the delivery by each 2018 Incremental Term Lender of its signature page pursuant to preceding clause (c) shall constitute delivery of a Lender Consent for the purpose of such 2018 Incremental Term Lender’s consent to the amendment to the Credit Agreement in Section 1(d) hereof);
(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 Second Amendment and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Second Amendment and the other Loan Documents to which the Borrower is a party or is to be a party on the Second Amendment Effective Date;
(iiif) Payment in respect of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with 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 Second 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 Second 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 Second 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 Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments 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 Second Amendment Agreement to which it is a party or any and the other document delivered in connection herewith on the Second 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 Second 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 Second 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 Arranger any fees and expenses owing to them pursuant to the terms of the Credit Agreement (as amended hereby) and this Second Amendment or as otherwise separately agreed in writing in connection with this Second Amendment and the related transactions and (ii) to the Administrative Agent, for the ratable account of each Existing Term Lender (after giving effect to the replacement of any Non-Consenting Lender pursuant to Section 3.07 of the Credit Agreement), all accrued but unpaid interest on the Term Loans held by such Existing Term Lender immediately prior to the Second Amendment Effective Date;
(h) the Administrative Agent shall have received a Committed Loan Notice in respect of the 2018 Incremental Term Loans;
(i) the Borrower shall have delivered a Note executed by the Borrower in favor of each 2018 Incremental Term Lender that has requested a Note at least two Business Days in advance of the Closing Date;
(j) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying (with reasonably detailed calculations) that the conditions precedent set forth in (x) subclause (iv) of Section 2.14(d) of the Credit Agreement and (y) Section 3(a) and (b) of this Second Amendment have been satisfied;
(k) the Administrative Agent shall have received a solvency certificate signed by a Responsible Officer of the Borrower (with appropriate modifications to reflect the consummation of the transactions contemplated by this Second Amendment) substantially in the form attached to the Credit Agreement as Exhibit D-2;
(l) the Administrative Agent shall have received a customary 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 shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately at least five days prior to the Second Amendment Effective Date Closing Date, any Borrower that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (qualifies as defined below), if any, then due and owing a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Lenders under Borrower. For the Loan Documents purpose of Section (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.3)(n):
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. Section 3.1. This Second Amendment shall not become effective until, and shall become effective when, each and every one of the following conditions shall have been satisfied (the "Second Amendment Effective Date"):
(a) executed counterparts of this Second Amendment, duly executed by the Company and the holders of more than 50% of the outstanding principal of the Notes, shall have been delivered to the Noteholders;
(b) the Noteholders shall have received a copy of the resolutions of the Board of Directors or its equivalent of the Company authorizing the execution, delivery and performance by the Company of this Second Amendment, certified by its Secretary or an Assistant Secretary;
(c) the representations and warranties of the Company set forth in ss. 2 hereof are true and correct on and with respect to the date hereof;
(d) the Noteholders shall have received the favorable opinion of Calfee, Halter & Griswold LLP, counsel for the Company, dated txx Seconx Xxxxxment Effective Date, which opinion shall be in form and substance satisfactory to the Noteholders and Chapman and Cutler LLP, their special counsel;
(x) All xxxxeedings taken in connection with the transactions contemplated by this Second Amendment, and all documents necessary to the consummation thereof, shall be reasonably satisfactory in form and substance to the Noteholders and Chapman and Cutler LLP, their special counsel, and the Noxxxxxxxrs sxxxx xave received a copy (executed or certified as may be appropriate) of all legal documents or proceedings taken in connection with the consummation of said transactions;
(f) As of the effective date of this Second Amendment (after giving effect to the amendments contemplated hereby), no Default or Event of Default shall have occurred and be continuing; and
(g) the Company shall have paid a fee to each holder of Notes, whether or not they sign this Second Amendment, in an amount equal to 5 basis points multiplied by the outstanding principal amount of the Notes held by such holder of Notes. This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:immediately when the following conditions shall have been satisfied (or waived, which waiver may be concurrent with the satisfaction of the other conditions specified below):
(ia) The Borrower, Holdings, the Administrative Agent and each 2019 Refinancing Revolving Lender shall have signed a counterpart hereof (whether the same or different counterparts).
(b) The Administrative Agent shall have received duly executed a written legal opinion (addressed to the Administrative Agent, the Collateral Agent and delivered counterparts of this Second Amendment that, when taken together, bear the signatures each 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 Guarantorsof Xxxxx Xxxxx LLP, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal counsel to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term LoansLoan Parties, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before dated the Second Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent shall have received a Borrowing RequestAgent.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(ivc) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organizedBorrower, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that the conditions in Sections 4(h) and 4(i) of this Second Amendment and those set forth in Section 2.21 of the Credit Agreement have been satisfied as of the Second Amendment Effective Date.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party attaching a copy of (i) such amendments are each Organizational Document of each Loan Party certified, to the only amendments to such Person’s charter on file in such officeextent applicable, as of a recent date by the applicable Governmental Authority, (ii) such Person has paid all franchise taxes to the date of such certificate signature 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 incumbency certificates of the Borrower authorizing the execution and delivery Responsible Officers of the each Loan Party executing this Second Amendment Agreement to which it is a party party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Second Amendment or any other document delivered in connection herewith on to which it is a party, certified as of the Second Amendment Effective Date and certifying that such resolutions have not been modifiedby its secretary, rescinded an assistant secretary or amended and are a Responsible Officer as being in full force and effect; and
deffect without modification or amendment, and (iv) as a good standing certificate (to the incumbency and specimen signature extent such concept exists) from the applicable Governmental Authority of each Responsible Officer executing Loan Party’s jurisdiction of incorporation, organization or formation; provided that in the Second Amendment Agreement case of immediately preceding clauses (together with i) and (ii), such documents shall not be required to be delivered if such certificate includes a certificate of another certification by such officer as that the applicable Organizational Documents or resolutions delivered to the incumbency Administrative Agent in connection with the Effective Date remain in full force and specimen signature of effect and have not been amended, modified, revoked or rescinded since the Responsible Officer executing the certificate pursuant hereto)Effective Date.
(ve) The Administrative Agent shall have received a customary legal opinion solvency certificate, substantially in the form of XxxxxxExhibit E-2 of the Credit Agreement, Xxxx & Xxxxxxxx LLP, special New York and California counsel from the chief financial officer or chief accounting officer or other officer with equivalent duties of the Borrower certifying as to the Loan Partiessolvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to this Second Amendment.
(vif) The Borrower shall have paid to the Administrative Agent for the ratable benefit of each 2019 Refinancing Revolving Lender, an upfront fee in an amount equal to 0.15% of the aggregate amount of the 2019 Refinancing Revolving Commitments (Aafter giving effect to the reduction on the Second Amendment Date pursuant to Section 3(a) Each hereof) held by such 2019 Refinancing Revolving Lender on the Second Amendment Effective Date (which for the avoidance of doubt shall be $12,500,000), with each such payment to be earned by, and payable to, each such Lender on the Second Amendment Effective Date.
(g) On the Second Amendment Effective Date, the Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Borrower to be due and payable on or prior to the Second Amendment Effective Date (including reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid pursuant to Section 9.03(a) of the Credit Agreement); provided that the Borrower shall have been notified of any such amounts due by the Administrative Agent two (2) Business Days before the Second Amendment Effective Date.
(h) Immediately before and after giving effect to this Second Amendment, all of the representations and warranties set forth of each Loan Party contained in Section 3 this Second Amendment and in the other Loan Documents (as amended by this Second Amendment) are true and correct in all material respects at such time; provided that, to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties shall be true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date; provided, in which case such representations further, that any representation and warranties warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall have been be true and correct in all material respects and as on the date of such credit extension or on such earlier date, as the case may be.
(i) Immediately before and (B) after giving effect to this Second Amendment, no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated herebybe continuing.
(viij) The aggregate proceeds Concurrently with the incurrence of the Additional Term 2019 Refinancing Revolving Commitments, the Borrower shall have paid to the Administrative Agent for the account of each Revolving Lender with outstanding Revolving Loans will be used (if any) on, and immediately prior to, the Second Amendment Effective Date, all accrued but unpaid interest owing with respect to refinance in full all Existing Term Loanssuch Revolving Loans to but not including the Second Amendment Effective Date.
(k) Concurrently with the incurrence of the 2019 Refinancing Revolving Commitments, consisting the Borrower shall have paid (i) to the Administrative Agent (for the account of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable (other than Exchanged Term Loansthe Revolving Lenders), on the terms all accrued and subject unpaid commitment fees owing with respect to the conditions set forth hereinRefinanced Revolving Commitments, including via (ii) to the assignment by Administrative Agent (for the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under ratable account of the Amended Issuing Bank), all accrued and unpaid fronting fees owing with respect to any Letters of Credit Agreement issued and outstanding on the Second Amendment Effective Date and (iii) to the Additional Lenders as Administrative Agent (for the ratable account of the Revolving Lenders), all accrued and unpaid Letter of Credit participation fees owing with respect to Letters of Credit issued and outstanding on the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans)Date, which shall thereafter be continued as and be deemed in each case, to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to but not including the Second Amendment Effective Date that are not party to this Second Amendment, Date.
(l) Concurrently with the incurrence of the 2019 Refinancing Revolving Commitments and the funding of the 2019 Refinancing Revolving Loans (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 Second Amendment) and of which the Borrower has Refinanced Revolving Commitments shall have been notifiedterminated.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Section 4.1. Upon satisfaction of each and every one of the following conditions, this Second Amendment shall become effective as of August 13, 2003 (the "Effective Date"):
(a) counterparts of this Second Amendment, duly executed by the Company and the Noteholders, shall have been delivered to the Noteholders;
(b) the Amended and Restated Notes, duly executed by the Company, shall have been delivered to the appropriate Noteholders;
(c) each Subsidiary Guarantor shall have duly executed the reaffirmation of Guaranty attached hereto;
(d) the representations and warranties of the Company set forth in Section 3.1 hereof are true and correct on and with respect to the date hereof;
(e) the “Company shall have delivered to each Noteholder an Officer's Certificate, dated the Effective Date, certifying that the conditions specified in Section 4.1(d) hereof have been fulfilled;
(f) the Company shall have delivered to each Noteholder a certificate certifying as to the resolutions attached thereto and other proceedings relating to the authorization, execution and delivery of this Second Amendment, the Amended and Restated Notes, the Intercreditor Agreement, and the Security Documents;
(g) each holder of a Note shall have received evidence satisfactory to it that the Credit Agreement dated as of October 29, 2002 among the Company, each lender from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, has been amended in substantially the same manner as the Note Purchase Agreement has been amended by this Second Amendment Effective Date”and otherwise in form and substance reasonably satisfactory to the holders of Notes;
(h) on which:each Noteholder shall have received, by payment in immediately available funds to the account of such Noteholder set forth in Schedule A to the Note Purchase Agreement the amount set forth opposite such Noteholder's name in Schedule 1 attached hereto; and
(i) The Administrative Agent the Company shall have received duly executed paid the fees and delivered counterparts expenses of this Second Amendment thatXxxxxx Xxxxxx & Xxxxx, 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 special counsel to the aggregate principal amount of Noteholders, in connection with the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loansnegotiation, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness preparation, approval, execution and delivery of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This 3.1. Upon satisfaction of each and every one of the following conditions, this Second Amendment shall become effective on as of the date (the “Second Amendment Effective Date”) on whichfirst written above:
(ia) The Administrative Agent executed counterparts of this Second Amendment, duly executed by the Company and the Required Holders, shall have received duly been delivered to each Noteholder or its special counsel; provided that the amendment to Section 8.3(h) contained in Section 1.1 of this Second Amendment shall not be effective unless executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures shall have been duly executed by each of the Borrower, Noteholders;
(b) the Additional Lenders representations and the Administrative Agent (on its behalf, as well as on behalf warranties of the Exchanging Term LendersCompany set forth in Section 2 hereof are true and correct on and with respect to the date hereof;
(c) the Company shall have delivered to each Noteholder or its special counsel evidence that the parties to the Bank Credit Agreement shall have duly executed and all Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans delivered an amendment which amendment shall be equal to consistent with the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness amendments set forth in Sections 1.3 and 1.4 of this Second Amendment.Amendment and otherwise be in form and substance reasonably satisfactory to the Required Holders and which shall not contain any provisions or amendments which relate to any other material affirmative or negative covenants or any events of default or remedies thereunder and the effect of which is to subject the Company or any of its Subsidiaries to any more onerous or more restrictive provisions;
(iid) Not later than 11 a.m.each Noteholder shall have received, New York City time, on by payment in immediately available funds to the Business Day before account of such holder set forth in Schedule A to the Second Amendment Effective DateNote Purchase Agreement or to such other account as such Noteholder shall have heretofore provided to the Company, the Administrative Agent amount set forth opposite such holder’s name in Schedule 1 attached hereto; and
(e) the Company shall have received a Borrowing Request.
(iii) Payment paid the fees and expenses of all fees required to be paid pursuant Xxxxxx Xxxxxx LLP, special counsel to the Engagement Letter dated as of January 5Noteholders, 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 in connection with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Partynegotiation, and each amendment theretopreparation, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organizedapproval, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the this Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 invoiced by noon (BNew York time) 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreementdate hereof.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Section 4.1. Upon satisfaction of each and every one of the following conditions, this Second Amendment shall become effective on the date as of August 13, 2003 (the “Second Amendment Effective Date”):
(a) counterparts of this Second Amendment, duly executed by the Company and the Noteholders, shall have been delivered to the Noteholders;
(b) the Amended and Restated Notes, duly executed by the Company, shall have been delivered to the appropriate Noteholders;
(c) each Subsidiary Guarantor shall have duly executed the reaffirmation of Guaranty attached hereto;
(d) the representations and warranties of the Company set forth in Section 3.1 hereof are true and correct on which:and with respect to the date hereof;
(e) the Company shall have delivered to each Noteholder an Officer’s Certificate, dated the Effective Date, certifying that the conditions specified in Section 4.1(d) hereof have been fulfilled;
(f) the Company shall have delivered to each Noteholder a certificate certifying as to the resolutions attached thereto and other proceedings relating to the authorization, execution and delivery of this Second Amendment, the Amended and Restated Notes, the Intercreditor Agreement, and the Security Documents;
(g) each holder of a Note shall have received evidence satisfactory to it that the Credit Agreement dated as of October 29, 2002 among the Company, each lender from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, has been amended in substantially the same manner as the Note Purchase Agreement has been amended by this Second Amendment and otherwise in form and substance reasonably satisfactory to the holders of Notes;
(h) each Noteholder shall have received, by payment in immediately available funds to the account of such Noteholder set forth in Schedule A to the Note Purchase Agreement the amount set forth opposite such Noteholder’s name in Schedule 1 attached hereto; and
(i) The Administrative Agent the Company shall have received duly executed paid the fees and delivered counterparts expenses of this Second Amendment thatXxxxxx Xxxxxx & Xxxxx, 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 special counsel to the aggregate principal amount of Noteholders, in connection with the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loansnegotiation, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness preparation, approval, execution and delivery of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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 Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has been notified.
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on whichwhen each of the following conditions shall have been satisfied:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy no Event of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Default exists as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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.Second Amendment;
(viib) The aggregate proceeds all of the Additional Term Loans will be used to refinance representations and warranties of the Borrower and each other Loan Party contained 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 and the other Loan Documents (including this Second Amendment) are true and correct in all material respects on the Second Amendment Effective Date Date, both before and after giving effect to this Second Amendment, with the Additional Lenders same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such Existing 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, each Revolving Credit Lender, the Swing Line Lender, each L/C Issuer and each Term Lender with outstanding 2022 Term Loans (including any Term Lender that replaces a Term Lender being a Non-Consenting Lender (a “Replacement 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 than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under electronic transmission) the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior same to the Second Amendment Effective Date Administrative Agent. As used herein, the term “Non-Consenting Lender” means each Term Lender that are does not party provide its consent to this Second 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 Second Amendment) and of which the Borrower has been notified.;
Appears in 1 contract
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the first date (the “Second Amendment Effective Date”) on whichwhich the following conditions precedent are satisfied:
(i) The Administrative Agent shall have received duly (A) this Second Amendment, executed and delivered counterparts of by the US Borrower, the Administrative Agent and the Replacement Term Lender and (B) a written instrument reasonably satisfactory to the Administrative Agent, executed and delivered by Holdings, the US Borrower and the Subsidiary Guarantors, pursuant to which each party thereto consents to this Second Amendment that, when taken together, bear and the signatures Replacement Term Loans and agrees that the Guarantee and Collateral Agreement and the other Security Documents to which it is party will continue to apply in respect of the Borrower, Amended Credit Agreement (the Additional Lenders and the Administrative Agent “Reaffirmation Agreement”);
(on its behalf, as well as on behalf of the Exchanging Term Lendersii) and all Guarantors, and the (A) The aggregate principal amount of the Exchanged Replacement Term Loans and Loans, together with certain cash on hand of the Additional Term Loans US Borrower, shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
Amendment (iiplus the amount of fees, costs and expenses incurred in connection with the Replacement Term Loans) Not later than 11 a.m.and (B) the US Borrower shall have, New York City timeconcurrently with the making of the Replacement Term Loans, paid all accrued and unpaid interest and other amounts, if any, on the Business Day before aggregate principal amount of the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.Existing Term Loans;
(iii) Payment of all All fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder in connection with this Second Amendment or under any other Loan Document or other agreement with the US Borrower relating to the transaction transactions contemplated hereby.hereby (including reasonable and documented out-of-pocket legal fees and expenses required to be paid by the US Borrower pursuant to Section 9.3(a) of the Amended Credit Agreement) payable by the US Borrower on or before the Second Amendment Effective Date shall have been paid to the extent then due; provided that any such fees and expenses shall be required to be paid, as a condition precedent to the Second Amendment Effective Date, only to the extent invoiced at least one (1) Business Day prior to the Second Amendment Effective Date;
(iv) The Administrative Agent shall have received a solvency certificate in the form of Exhibit J to the Credit Agreement from a Responsible Officer of the Loan Parties dated US Borrower with respect to the solvency of the US Borrower and its Subsidiaries, on a consolidated basis, after giving effect to this Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organizedtransactions contemplated hereby;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion duly executed officer’s certificate of Xxxxxxthe US Borrower certifying, Xxxx & Xxxxxxxx LLPas of the Second Amendment Effective Date, special New York and California counsel to the Loan Parties.
(vi) that (A) Each each of the representations and warranties set forth in Section 3 shall be above are true and correct in all material respects on and as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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, Date and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to this Second Amendment and the transactions contemplated hereby., or will result therefrom;
(viivi) The aggregate proceeds Administrative Agent shall have received the following:
(A) a certificate of the Additional Term Loans will be used to refinance in full all Existing Term Loans, consisting Secretary or Assistant Secretary of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable (other than Exchanged Term Loans), on the terms and subject each Loan Agreement Party party to the conditions set forth hereinReaffirmation Agreement, including via dated the assignment by Second Amendment Effective Date, (1) attaching a copy of a short form certificate of the Lenders holding Secretary of State or other applicable Governmental Authority of the jurisdiction in which each Loan Agreement Party party to the Reaffirmation Agreement is organized, dated reasonably near the Second Amendment Effective Date, certifying that such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders Loan Agreement Party is duly organized and in good standing or full force and effect under the Amended Credit laws of such jurisdiction and (2) certifying (x) (I) that attached thereto is a true and complete copy of the applicable formation document and by-laws or operating agreement of such Loan Agreement Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the Additional Lenders date of the resolutions described in clause (y) below or (II) that the applicable formation document and by-laws or operating agreement of such Loan Agreement Party provided in the certificate delivered on the Closing Date have not been amended or otherwise modified since the Closing Date and remain in full force and effect on the Second Amendment Effective Date, (y) (I) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or members of other governing body, as applicable, of such Loan Agreement Party authorizing the execution, delivery and performance of this Second Amendment and the borrowings hereunder, in the case of the US Borrower, and any Loan Documents to which each such Loan Agreement Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect or (II) that the resolutions duly adopted by the board of directors, board of managers or members of other governing body, as applicable, of such Loan Agreement Party in connection with the entry into the Credit Agreement on the Closing Date have not been modified, rescinded or amended and remain in full force and effect on the Second Amendment Effective Date and (z) (I) as to the incumbency and specimen signature of each officer executing this Second Amendment or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Agreement Party or (II) that the incumbency and specimen signature provided on the Closing Date of each officer executing this Second Amendment or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Agreement Party have not changed as of the Second Amendment Effective Date; and
(B) Customary good standing “bringdown” confirmations for each Loan Agreement Party party to the Reaffirmation Agreement, dated the Second Amendment Effective Date;
(vii) The Administrative Agent shall have received the legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to Holdings, the US Borrower and certain of its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent (on behalf of any Person that will become a Lender of the Replacement Term Loans and is not a Lender immediately prior to the Second Amendment Effective Date); and
(viii) Delivery of a Borrowing Request pursuant to Section 2.9 of the Credit Agreement.
(b) The borrowing of the Replacement Term Loans pursuant to this Second Amendment shall constitute a representation and warranty by the US Borrower as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under that the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and the making conditions contained in Section 4.2 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 Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Borrower has Credit Agreement have been notifiedsatisfied.
Appears in 1 contract
Samples: Second Replacement Facility Amendment (Continental Building Products, Inc.)
Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the Borrower, the Additional Required Lenders, all Term Lenders and (after giving effect to the Administrative Agent (on its behalf, as well as on behalf replacement of any Non-Consenting Lenders by the Exchanging Term LendersReplacement Lender) and all Subsidiary Guarantors, and the aggregate principal amount of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.;
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment Each of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof, 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 conditions 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 LoansSections 4.01(b), on the terms 4.01(c) and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans4.01(d) who do not remain Lenders under of the Amended Credit Agreement on shall have been satisfied or waived in accordance with the terms of the Amended Credit Agreement;
(iii) The Administrative Agent shall have received a certificate, dated as of the Second Amendment Effective Date Date, duly executed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4(a)(ii)(A) above and Section 4.01(c) of the Amended Credit Agreement;
(iv) The Administrative Agent shall have received (1) a certificate as to the Additional Lenders good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization; (2) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Second Amendment Effective Date and certifying (A) that the by-laws or other similar governing documents, as applicable, of such Existing Term Loans (Loan Party have not been amended or changed since the Closing Date other than Exchanged Term Loans)those changes attached to such certificate, which shall thereafter be continued (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other similar governing body, as applicable, of such Loan Party authorizing the execution, delivery and be deemed to be Term Loans under the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently with the exchange performance of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with the Second Amendment Term Loans and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the making certificate or articles of incorporation or other formation documents of such Loan Party have not been amended or changed since the Closing Date other than those changes attached to such certificate and (D) that there has been no change as to the incumbency and specimen signature of each officer executing the Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party since the Closing Date other than any such changed incumbency and specimen signatures attached to such certificate; and (3) a certificate of another officer as to the incumbency and specimen signature of the Additional Term Loans, if any, Secretary or Assistant Secretary executing the certificate pursuant to clause (A2) paid above;
(v) The Administrative Agent shall have received all interest accrued and but unpaid interest on all existing Loans through the Second Amendment Effective Date;
(vi) The Administrative Agent shall have received all documentation and other amounts on information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the aggregate principal amount of Patriot Act, that has been requested by 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 Administrative Agent at least three Business Days prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, Date; and
(vii) The Repricing Arranger and the Administrative Agent shall have received all indemnities, cost reimbursements fees and other Obligations (as defined below), if any, then amounts due and owing to such Lenders under the Loan Documents (payable on or prior to the effectiveness Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of this Second Amendment) and of which all out-of-pocket expenses required to be reimbursed or paid by the Borrower has been notifiedhereunder or under any other Loan Document or other agreement with the Borrower relating to the Transactions.
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Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Second Amendment that, when taken together, bear the signatures of the BorrowerBorrowers, the other Loan Parties, 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 Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.;
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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) Ropes & Gray LLP, special counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders and (b) Xxxxx, Xxxxxxx, Xxxxxxxx and Xxxxxx, P.C., special counsel for any Guarantors organized under the laws of Pennsylvania, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders;
(iv) The Administrative Agent shall have received:
(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Second Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Second Amendment and any other Loan Documents executed in connection with this Second Amendment to which such person is a party and, in the case of the Borrowers, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Second Amendment and any other Loan Document executed in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (1));
(2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;
(3) a certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of the Parent Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii);
(4) a certificate dated as of the Second Amendment Effective Date in substantially the form of Exhibit K to the Existing Credit Agreement from the Chief Financial Officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein; and
(5) a Borrowing Request completed and signed by a Responsible Officer of the Borrower;
(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 Second Amendment Term Loans, to refinance in full all Existing Term Loans, consisting of Tranche B-1 Term Loans or Tranche B-2 other than Cashless Settlement Term Loans, as applicable (other than Exchanged Term Loans), on the terms and subject to the conditions set forth herein, including via the assignment by the Lenders holding such Existing Term Loans (other than Exchanged Term Loans) who do not remain Lenders under the Amended Credit Agreement on the Second Amendment Effective Date to the Additional Lenders as of the Second Amendment Effective Date of such Existing Term Loans (other than Exchanged Term Loans), which shall thereafter be continued as and be deemed to be Term Loans under the Amended Credit Agreement.;
(viiivi) The Borrower Borrowers shall have, concurrently with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with for the Second Amendment Term Loans and the making of the Additional Term Loans, if any, (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable and (B) paid to all Term Lenders holding Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable immediately prior to the Second Amendment Effective Date that are not party to this Second Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Term Lenders under the Loan Documents (prior to the effectiveness of this Second Amendment) and of which the Parent Borrower has been notified; and
(vii) The Amendment Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document or other agreement with the Borrowers relating to the transactions contemplated hereby.
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Conditions to Effectiveness of this Second Amendment. (a) This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(i) The Administrative Agent when each of the following conditions shall have received duly executed and delivered counterparts of this Second Amendment thatbeen satisfied (which, when taken together, bear in the signatures case of the Borrower, the Additional Lenders and the Administrative Agent conditions set forth in clauses (on its behalf, as well as on behalf of the Exchanging Term Lendersc) and all Guarantors(d) below, and may be satisfied substantially concurrently with the aggregate principal amount occurrence of the Exchanged Term Loans and the Additional Term Loans shall be equal to the aggregate principal amount of the Existing Term Loans consisting of Tranche B-1 Term Loans or Tranche B-2 Term Loans, as applicable outstanding on the Second Amendment Effective Date immediately prior to the effectiveness of this Second Amendment.
(ii) Not later than 11 a.m., New York City time, on the Business Day before the Second Amendment Effective Date, the Administrative Agent shall have received a Borrowing Request.):
(iii) Payment of all fees required to be paid pursuant to the Engagement Letter dated as of January 5, 2016 and any related fee letters (the “Fee Letters”) described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby.
(iv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Loan Parties dated the Second Amendment Effective Date and certifying:
a) that attached thereto is a true and complete copy no Event of the charter or other similar organizational document of such Loan Party, and each amendment thereto, certified (as of a date reasonably near the Second Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized;
b) that attached thereto is a true and complete copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized, dated reasonably near the Second Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
c) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Second Amendment Agreement to which it is a party or any other document delivered in connection herewith on the Second Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
d) as to the incumbency and specimen signature of each Responsible Officer executing the Second Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant hereto).
(v) The Administrative Agent shall have received a customary legal opinion of 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 Default exists as of the Second Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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.Second Amendment;
(viib) The aggregate proceeds all of the Additional Term Loans will be used to refinance representations and warranties of the Borrower and each other Loan Party contained 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 and the other Loan Documents (including this Second Amendment) are true and correct in all material respects on the Second Amendment Effective Date Date, both before and after giving effect to this Second Amendment, with the Additional Lenders same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such Existing Term Loans specified date, (other than Exchanged Term Loans), which y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall thereafter be continued as true and be deemed to be Term Loans under correct in all respects on such date) and (z) for purposes of Sections 4.02(a) and 5.05(b) of the Amended Credit Agreement.
(viii) The Borrower shall have, concurrently the effects, events, occurrences, facts, conditions or changes arising out of, resulting from or in connection with the exchange of Exchanged Term Loans consisting of Tranche B-1 Term Loans and/or Tranche B-2 Term Loans with COVID-19 pandemic that have occurred, and been disclosed to the Second Amendment Term Loans Administrative Agent and the making of the Additional Term LoansLenders, 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 Second Amendment Effective Date that are not (including the closing of the Hotel Real Properties) shall be disregarded in the determination of a “Material Adverse Effect” under clause (a) of the definition thereof;
(c) the Borrower, Holdings, the other Guarantors, the Administrative Agent and each 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; and
(d) the Administrative Agent shall have received a copy of an amendment to Existing Senior Secured Credit Facility in form and substance reasonable satisfactory to the Lenders, duly executed and delivered by the Loan Parties party thereto and the other parties thereto; and
(e) The Borrower shall have paid (or made acceptable arrangements with the Administrative Agent to this Second Amendment, if any, pay) all indemnities, cost reimbursements fees and other Obligations (as defined below), if any, then expenses due and owing to such Lenders under payable hereunder and the Loan Documents (prior reasonable fees and expenses of the Lenders’ and Administrative Agent’s attorneys with respect to the effectiveness preparation, negotiation and execution of this Second Amendment) and of which the Borrower has been notified.
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