Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the date (the “Second Amendment Effective Date”) on which the following conditions precedent have been satisfied: (a) The Administrative Agent shall have received this Amendment, executed and delivered by the Administrative Agent, the Borrower and the ABL Lenders. (b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower. (c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent. (d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization. (e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent. (f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent. (g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent. (h) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date. (i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date. (j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Second Amendment Effective Date. This Amendment (subject The addition of the New Lender as a party to Section 4) the Credit Agreement effected by PARAGRAPH 2 above and the amendments effected by PARAGRAPH 3 above shall become effective as of the date on January 28, 2000 (the “"SECOND AMENDMENT EFFECTIVE DATE"), subject to receipt by the Existing Lenders, the New Lender and Agent, as applicable, on or prior to the Second Amendment Effective Date”) on which Date of the following conditions precedent have been satisfiedfollowing, each in form and substance satisfactory to the Existing Lenders, the New Lender and Agent and their respective counsel, as applicable:
(a) The Administrative Agent shall have received this AmendmentThis Amendment duly executed by Borrower, executed each Lender and delivered by the Administrative Agent, the Borrower and the ABL Lenders.;
(b) All costsAn Amended and Restated Note, fees dated the Closing Date and expenses required to be paid by the Borrower otherwise appropriately completed, made payable to the Administrative Agent, JPMorgan Chase Bank, N.A.New Lender, in its capacity the amount of the New Lender's Proportionate Share as sole lead arranger and bookrunner for this Amendment, and of the ABL Lenders in connection with the Amended Credit Agreement and this Second Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.Effective Date;
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, A letter in the form of ATTACHMENT B hereto appropriately completed and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.duly executed by each Guarantor;
(d) The Administrative Agent shall have received (i) a certificate A Certificate of each Loan Partythe Secretary of Borrower, dated the Second Amendment Effective Date, substantially certifying that (i) the Articles of Incorporation and Bylaws of Borrower, in the form of Exhibit B heretodelivered to Agent on the Closing Date, with appropriate insertions are in full force and attachments effect and have not been amended, supplemented, revoked or repealed since such date and (ii) evidence reasonably satisfactory to that attached thereto are true and correct copies of resolutions duly adopted by the Administrative Agent that each Loan Party is Board of Directors of Borrower and continuing in good standing effect, which authorize the execution, delivery and performance by Borrower of this Amendment and the consummation of the transactions contemplated hereby, including without limitation, the increase in its jurisdiction of organization.the Total Commitment;
(e) The Administrative Agent shall have received A Certificate of the executed legal opinion Secretary of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificateeach Domestic Subsidiary, dated the Second Amendment Effective Date, substantially certifying that (i) the Articles of Incorporation and Bylaws of such Domestic Subsidiary, in the form delivered to Agent on the Closing Date or the First Amendment Effective Date (as applicable), are in full force and effect and have not been amended, supplemented, revoked or repealed since such date and (ii) that attached thereto are true and correct copies of Exhibit L resolutions duly adopted by the Board of Directors of such Domestic Subsidiary and continuing in effect, which authorize the execution, delivery and performance by such Domestic Subsidiary of the Credit Documents executed or to the Amended Credit Agreement, be executed by such Subsidiary in connection with this Amendment and the chief financial officer consummation of the Borrowertransactions contemplated hereby and thereby;
(f) A favorable written opinion of legal counsel for Borrower and the Domestic Subsidiaries, certifying that on dated the Second Amendment Effective Date, immediately after giving effect addressed to this AmendmentAgent for the benefit of Agent, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date Existing Lenders and the application of the proceeds thereofNew Lender, the Borrower covering such legal matters as Agent may reasonably request and its Subsidiaries, on a consolidated basis, are solvent.otherwise in form and substance satisfactory to Agent; and
(g) The Administrative Agent shall have receivedSuch other evidence as Agent, at least one business day prior any Existing Lender or the New Lender may reasonably request to establish the Second Amendment Effective Date, all documentation accuracy and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(h) Each completeness of the representations and warranties made by any Loan Party and the compliance with the terms and conditions contained in or pursuant to this Amendment, the Amended Credit Agreement Amendment and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier dateCredit Documents.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Samples: Credit Agreement (Adac Laboratories)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Additional 2018 Incremental Term Lenders and the Successor Administrative Agent):
(a) The Successor Administrative Agent shall have received a counterpart signature page of this AmendmentAmendment duly executed by each Loan Party, executed and delivered by the Existing Administrative Agent, the Borrower Successor Administrative Agent, each Additional 2018 Incremental Term Lender and the ABL Lenders constituting the Required Lenders.
(b) All costsThe Successor Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party (i) attaching the articles of formation or other or formation documents of such Loan Party and the bylaws, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A.operating agreement or comparable governing document of such Loan Party, in its capacity as sole lead arranger and bookrunner for this Amendmenteach case, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid certified by an appropriate Governmental Authority, to the extent due applicable, (ii) certifying that attached thereto are the resolutions of the Board of Directors (or other governing body) of such Loan Party approving and invoiced authorizing the execution, delivery and performance of this Amendment and the other Loan Documents, as applicable, as being in full force and effect without modification or amendment as of the Second Amendment Effective Date, (iii) attaching signature and incumbency certificates of the Responsible Officers of such Loan Party executing Loan Documents to which it is a party and (iv) attaching the Borrowergood standing certificates described in clause (c) below.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Successor Administrative Agent shall have received a solvency certificatecertificate of good standing, dated existence or its equivalent with respect to each Loan Party certified as of a recent date by the Second Amendment Effective Dateappropriate Governmental Authority of the state of incorporation or formation, substantially in as the form of Exhibit L case may be and to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solventextent such concept exists.
(gi) The Administrative Agent shall have received, at At least one business day three (3) Business Days prior to the Second Amendment Effective Date, the Successor Administrative Agent and the Lenders shall have received all documentation and other information about any the Loan Party Parties that shall have been reasonably requested by the Administrative Agent in writing at least three business days ten (10) Business Days (with respect to the Borrower) and at least six (6) Business Days (with respect to GFL USA and Buyer) prior to the Second Amendment Effective Date and that the Successor Administrative Agent and the Lenders reasonably determines (x) determine is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, Act and (yii) if the Borrower, GFL USA or Buyer qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230 and the Successor Administrative Agent has not been previously provided the Borrower, GFL USA or Buyer the name of each requesting Lender and its electronic delivery requirements at least ten (10) Business Days (with respect to the Borrower) and at least six (6) Business Days (with respect to GFL USA and Buyer) prior to the Second Amendment Effective Date, the Successor Administrative Agent and each such Lender requesting a beneficial ownership certification, which certification shall be substantially similar to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association (a “Beneficial Ownership Certification”) (which request is made through the Successor Administrative Agent) will have received, at least three (3) Business Days prior to the Second Amendment Effective Date, the Beneficial Ownership Certification in relation to the Borrower, GFL USA or Buyer.
(e) The Successor Administrative Agent shall have received a written legal opinion reasonably satisfactory to it (addressed to it, the Existing Administrative Agent and each Additional 2018 Incremental Term Lender party hereto and dated the Second Amendment Effective Date) of:
(i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties;
(ii) Stikeman Elliot LLP, Alberta, British Columbia, Ontario and Quebec counsel to the Loan Parties;
(iii) XxXxxxx Xxxxxx, New Brunswick, Nova Scotia and Newfoundland and Labrador counsel to the Loan Parties;
(iv) D’Arcy & Deacon LLP, Manitoba counsel to the Loan Parties; and
(v) Xxxxxx Xxxxxxx LLP, Saskatchewan counsel to the Loan Parties.
(f) All fees required to be paid on the Second Amendment Effective Date pursuant to that certain Amended and Restated Commitment Letter, dated as of October 17, 2018 (the “Commitment Letter”), among the Borrower, Barclays Bank PLC, Bank of Montreal and Royal Bank of Canada, each other Commitment Party (as defined therein) party thereto and each other financial institution which signs or has signed a joinder thereto or pursuant to the Fee Letter (as defined in the Commitment Letter) and the reasonable out-of-pocket expenses required to be paid on the Second Amendment Effective Date pursuant to the Commitment Letter, to the extent invoiced at least three (3) Business Days prior to the Second Amendment Effective Date (except as otherwise reasonably agreed by the Borrower), shall, upon the borrowing of the Additional 2018 Incremental Term Loans, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Additional 2018 Incremental Term Loans).
(g) The Acquisition shall have been consummated, or substantially simultaneously with the borrowing under the Additional 2018 Incremental Term Facility, shall be consummated, in all material respects in accordance with the terms of the Merger Agreement, after giving effect to any modifications, amendments, consents or waivers thereto by the Borrower (or its Affiliates), other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Additional 2018 Incremental Term Lenders or the Commitment Parties (as defined in the Commitment Letter) in their capacities as such, unless consented to in writing by the Lead Arrangers (as defined in the Commitment Letter) (such consent not to be unreasonably withheld, delayed or conditioned).
(h) Each Since December 31, 2017, there shall not have been a Material Adverse Effect (as such term is defined in the Merger Agreement as in effect on October 9, 2018).
(i) The Equity Contribution (as defined in the Commitment Letter) shall have been made, or substantially simultaneously with the borrowing under the Additional 2018 Incremental Term Facility, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.
(j) The Collateral and Guarantee Requirement shall have been satisfied with respect to the Loan Parties (it being understood that the Collateral and Guarantee Requirement with respect to the Target and its Subsidiaries (other than any such Subsidiary which constitutes an Excluded Subsidiary) shall be satisfied subject to and in accordance with the terms and conditions of the representations and warranties made by any Loan Party in or pursuant to this Amendment, Section 6.12 of the Amended Credit Agreement Agreement); provided that to the extent received by the Buyer pursuant to the Merger Agreement, the Borrower shall deliver (or shall cause to be delivered) to the Administrative Agent (as sub-agent for the Collateral Agent) the certificated equity securities of the Target1.
(k) The Refinancing (as defined in the Commitment Letter) shall be consummated (the “Second Amendment Refinancing”) substantially simultaneously with the borrowing of the Additional 2018 Incremental Term Loans and the other consummation of the Acquisition.
(l) The Successor Administrative Agent shall have received a Loan Documents Notice in respect of the Additional 2018 Incremental Term Loans to be made on the Second Amendment Effective Date.
(m) The Successor Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, and after giving effect to the Acquisition, substantially in the form of Annex I to Exhibit C of the Commitment Letter (adjusted to reference the solvency of the Borrower and its Subsidiaries) of the Borrower’s chief financial officer.
(n) On and as of the Second Amendment Effective Date (i) the Specified Representations shall be true and correct in all material respects (or in all respects if except for representations and warranties that are already qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so be true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment such materiality qualifier) and any extensions of credit requested (ii) the Specified Merger Agreement Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to be made under the Amended Credit Agreement on such datemateriality qualifier).
(jo) The Administrative Agent This Amendment shall have received (icomply with Section 2.14(c) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the BoardExisting Credit Agreement.
Appears in 1 contract
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the date (the “Second Amendment Effective Date”) on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received this Amendment, executed and delivered by the Administrative Agent, the Borrower and the ABL Lenders.
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making obligation of any Lender to make a Loan (as defined in the Amended Credit Agreement) to be made or a Synthetic Deposit on the Second Amendment Effective Date and is subject to the application satisfaction of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.all conditions precedent set forth below:
(gi) The Administrative Agent Arranger shall have received:
(A) this Agreement, at least one business day prior to the Second Amendment Effective Dateduly executed by (i) Holdco, all documentation and other information about any Loan Party reasonably requested by EnergySolutions, the Administrative Agent and the other parties hereto, and (ii) such other documentation as the Arranger shall reasonably determine necessary to evidence the new Commitments and the guarantee and security thereof, in writing at least three business days each case in form and substance satisfactory to the Arranger;
(B) a duly executed Request for Loan and (if applicable) Notice of Issuance and Request for Term Loan Eurodollar Basis;
(C) the loan certificate of EnergySolutions, in substantially the form attached hereto as Exhibit L, including a certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include without limitation, the following items: (A) a copy of the Articles of Organization of EnergySolutions, certified to be true, complete and correct by the Utah Department of Commerce, and a true, complete and correct copy of the operating agreement of EnergySolutions, (B) certificates of good standing for EnergySolutions issued by the Secretary of State or similar state official for each state in which EnergySolutions is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of EnergySolutions, authorizing EnergySolutions to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests or management of EnergySolutions;
(D) the results of a recent lien search in each relevant jurisdiction (including, without limitation, in the United States Patent and Trademark Office and the United States Copyright Office) with respect to EnergySolutions and each Guarantor, and such search shall reveal no liens on any of the outstanding shares issued by EnergySolutions and no liens on any of the assets of EnergySolutions or any Guarantor, other than liens permitted by the Loan Documents or liens to be discharged on or prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided pursuant to documentation satisfactory to the Administrative Agent.;
(hE) Each legal opinions of the representations (i) Weil, Gotshal & Xxxxxx LLP, counsel to EnergySolutions, (ii) Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx, Utah counsel to EnergySolutions, and warranties made by any Loan Party in or pursuant (iii) Xxxxxx, Xxxxx & Bockius LLP, special counsel to this AmendmentEnergySolutions and its Subsidiaries; each as counsel to EnergySolutions and its Subsidiaries, addressed to each Lender, the Amended Credit Agreement Administrative Agent and the other Loan Documents shall be true Collateral Agent, in form and correct in all material respects (or in all respects if qualified by materiality) on substance reasonably satisfactory to the Arranger and their counsel, and dated as of the Second Amendment Effective Date as if made Date;
(F) reasonably satisfactory evidence that all indebtedness (other than indebtedness identified on and as Schedule 1-A hereto) of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties Acquired Business shall have been so true repaid in full (or satisfactory arrangements made for such repayment) and correct as of such earlier datethe commitments thereunder shall have been permanently terminated.
(iG) No Default or Event of Default not later than 20 days before the Second Amendment Effective Date, the Lenders shall have occurred received (a) audited consolidated balance sheets and be continuing on related statements of income, stockholders’ equity and cash flows of each of EnergySolutions and the Acquired Business for the three fiscal years ended at least 90 days before the Second Amendment Effective Date or after giving effect (without any qualified audit opinion thereon) and (b) to this Amendment the extent available, unaudited consolidated balance sheets and any extensions related statements of credit requested to be made under income, stockholders’ equity and cash flows of each of EnergySolutions and the Amended Credit Agreement on such dateAcquired Business for each completed fiscal quarter since the date of the latest audited financial statements.
(jH) The Administrative Agent shall have received a completed Perfection Certificate substantially in the form of Exhibit R to this Agreement, executed by an Authorized Signatory of each Loan Party, together with all attachments contemplated thereby;
(iI) a loan certificate from Holdco and each other Loan Party, in substantially the form of Exhibit M, N or O, as applicable, including a certificate of incumbency with respect to any Mortgaged Property that contains one each officer or more buildingspartner authorized to execute Loan Documents on behalf of such Person, together with appropriate attachments which shall include, without limitation, the following items: (A) a “life-of-loan standard flood hazard determination”copy of the certificate or articles of incorporation of such Person or certificate of formation of such Subsidiary, as applicable, certified to be true, complete and correct by the Secretary of State of the jurisdiction of incorporation or of formation of such Subsidiary, (iiB) if any certificates of good standing for such Person issued by the Secretary of State or similar state official of each state in which such Person is organized or required to qualify to do business, (C) a true, complete and correct copy of the buildings on by-laws, operating agreement or partnership agreement, as applicable, of such Mortgaged Property Person, and (D) a true, complete and correct copy of the resolutions of such Person authorizing it to execute, deliver and perform the Loan Documents to which it is located a party;
(J) copies of reasonably satisfactory insurance brokers’ letters, binders or certificates covering the assets of EnergySolutions and its Subsidiaries, and otherwise meeting and covering the requirements of Section 5.5 hereof;
(K) duly executed Security Agreements and Pledge Agreements, together with proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreements, covering the Collateral described in the Security Agreements;
(L) evidence that all other recordings and filings of or with respect to each Security Document shall have been completed and that all other actions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Security Documents shall have been taken, completed or otherwise provided for in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff letters and otherwise UCC-3 termination statements) and the Administrative Agent shall have received such assurances, including, without limitation, title insurance and opinions of counsel, as the Administrative Agent may deem appropriate to establish the Loan Parties’ title to, and the due creation and perfection of the Administrative Agent’s liens on and security interests in, the Collateral and the absence of any unpermitted liens on or interests in compliance the Collateral, in form and substance satisfactory to the Administrative Agent;
(M) duly executed Notes (to the extent requested by any Lenders); and
(N) all other documents and other instruments as were provided in connection with the coverage required with respect closing of the Original Credit Agreement.
(ii) The sources and uses for the Duratek Acquisition will be reasonably satisfactory to the particular type of property under the National Flood Insurance Act of 1968 and Arranger.
(iii) if such Mortgaged Property The Equity Sponsor shall have made a cash common equity investment in Holdco in an amount of at least $170.0 million on terms reasonably satisfactory to the Arranger.
(iv) The Duratek Acquisition and the Merger shall have been consummated or shall be consummated simultaneously with or immediately following the initial Loans hereunder in accordance with the Duratek Acquisition Agreement (without amendment, modification or waiver thereof which is located materially adverse to the Lenders (as reasonably determined by the Arranger) without the prior consent of the Arranger).
(v) The ratio of Total Debt of the Loan Parties to the pro forma LTM EBITDA of the Loan Parties shall not be greater than 4.0 to 1. “Total Debt of the Loan Parties” means all indebtedness of the Loan Parties for money borrowed (net of cash and cash equivalents), on a pro forma basis giving effect to the funding of the loans under this Agreement and the Duratek Loan Agreement in connection with consummation of the Amendment Transactions. “Pro forma LTM EBITDA” shall be determined in a special flood hazard area, confirmation that manner reasonably satisfactory to the Borrower has received the notice required pursuant to Regulation H of the BoardArranger and EnergySolutions.
Appears in 1 contract
Second Amendment Effective Date. This Amendment (subject to Section 4) shall will become effective on November 7, 2001 or the first Business Day thereafter as of which each of the date following conditions precedent has been satisfied (the “"Second Amendment Effective Date”) on which the following conditions precedent have been satisfied:"):
(a) The Administrative Agent shall have has received from the Company and the Required Banks a duly executed original or facsimile counterpart of this Amendment, executed and delivered Amendment (any such facsimiles to be promptly followed by the Administrative Agent, the Borrower and the ABL Lendersoriginals thereof).
(b) All costs, fees and expenses required to be paid by The "Second Amendment Effective Date" as defined in the Borrower Second Amendment to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger Amended and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Restated Credit Agreement and this of even date herewith has occurred or is occurring contemporaneously as of the Second Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the BorrowerEffective Date hereunder.
(c) The Administrative Agent shall have has received all necessary or reasonably advisable amendments toan opinion of Xxxxxxx & Xxxxx LLP, as counsel to the Company and a reaffirmation agreement with respect tothe Partner Entities addressed to the Agent and the Banks, the existing collateral security in form and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be substance reasonably satisfactory to the Administrative AgentRequired Banks.
(d) The Administrative Agent Company shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory paid to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have an amount equal to $8,000,000 representing the aggregate Net Proceeds received by the executed legal opinion of Polsinelli PC, counsel to the Borrower Company and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days Subsidiaries prior to the Second Amendment Effective Date and that from the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsdispositions of property described on Schedule 5(d), including the PATRIOT Act, and (y) has not been previously provided such Net Proceeds to be applied to the Administrative Agentprepayment of the Facility B Loans in the manner described in Section 2.7(a) of the Agreement, as amended by this Second Amendment.
(he) Each The Company shall have paid to the Agent, for the account of each Bank that has executed a counterpart of this Amendment and delivered (by hard copy or facsimile) the representations and warranties made same to the Agent or its counsel by any Loan Party in or pursuant to this Amendment5:00 p.m. (Charlotte, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materialityNorth Carolina time) on and as of the Second Amendment Effective Date as if made on and as date hereof, a nonrefundable amendment fee in an amount equal to such Bank's Commitment multiplied by 0.50%; which amounts the Company hereby covenants to pay to the Agent for the account of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier dateBanks on demand.
(if) No Default or Event of Default The Company shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any paid all of the buildings on such Mortgaged Property is located fees and other amounts due and payable to Banc of America Securities LLC ("BAS"), including, without limitation, the fees set forth in a special flood areathat certain Engagement Letter dated as of August 28, a policy of flood insurance that (x) covers each such parcel 2001, between the Company and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the BoardBAS.
Appears in 1 contract
Samples: Facility B Credit Agreement (Crown Pacific Partners L P)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Administrative Agent):
(a) The the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings, each Borrower, and each 2021 Incremental Term Loan Lender;
(b) the Administrative Agent (or its counsel) shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit B attached hereto, executed and delivered by a Responsible Officer of Lead Borrower, the Co-Borrower and each Guarantor;
(c) the Acquisition shall have been consummated, or shall be consummated substantially concurrently with the initial funding of the 2021 Incremental Term Loans in all material respects in accordance with the terms of the Arkema Acquisition Agreement (without giving effect to any modifications, amendments or waivers that are materially adverse to the 2021 Incremental Term Loan Lenders or 2021 Incremental Term Loan Lead Arrangers (in each case, in their capacity as such)) without the consent of the 2021 Incremental Term Loan Lead Arrangers (such consent not to be unreasonably withheld, conditioned or delayed); provided that (a) any amendment, waiver or consent that results in a change in the amount of consideration required to consummate the Acquisition shall be deemed not to be materially adverse to the 2021 Incremental Term Loan Lenders or the 2021 Incremental Term Loan Lead Arrangers so long as (i) any reduction shall be applied to reduce the principal amount of 2021 Incremental Term Loans provided pursuant to this Amendment and the 2021 Unsecured Notes on a pro rata basis and (ii) any increase is funded by the Borrowers’ cash on hand and (b) the granting of any consent under the Arkema Acquisition Agreement that is not materially adverse to the interests of the 2021 Incremental Term Loan Lenders or the 2021 Incremental Term Loan Lead Arrangers shall not otherwise constitute an amendment or waiver;
(d) the Administrative Agent shall have received this Amendmenta Committed Loan Notice with respect to the 2021 Incremental Term Loans;
(e) the Administrative Agent shall have received (i) either (x) a copy of the certificate or articles of incorporation, executed and articles of association (statuts) 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 (where relevant) or by the Luxembourg Companies Register with respect to the Luxembourg Loan Parties or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered by to the Administrative Agent, (ii) a certificate of the Borrower secretary, an authorized representative, assistant secretary or managing director (as applicable) of each Loan Party dated the Second Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the ABL Lenders.
by-laws, articles of association or operating, management, partnership or similar agreement of such Loan Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below or (y) there has been no change to such governing documents since last delivered to the Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers, general meeting of the shareholders or other equivalent governing body of such Loan Party authorizing the execution, delivery and performance of this Amendment and/or the Acknowledgment and Confirmation delivered pursuant to clause (b) All costsabove and that such resolutions have not been modified, rescinded or amended and are in full force and effect (as applicable), (C) that any attached certificate or articles of incorporation, equivalent organizational document, by-laws, operating, management, partnership or similar agreement of such Loan Party has not been amended (in the case of the articles of incorporation of each such Loan Party, since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (E) below), (D) as to the incumbency and specimen signature of each officer or authorised signatory executing this Amendment or any other document delivered in connection herewith on behalf of such Loan Party, (E) good standing certificates, business registration certificates or registrars (or, in each case, its equivalent) for each Loan Party from the jurisdiction in which it is organized (as applicable in the relevant jurisdiction except for the Luxembourg Loan Parties), each dated a recent date prior to the Second Amendment Effective Date; and (F) for Luxembourg Loan Parties (x) that each such Luxembourg Loan Party is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, (y) a certificate of non-inscription of judicial decision (certificat de non-inscription d’une décision judiciaire) in relation to the Luxembourg Loan Parties dated as no earlier than one Business Day prior to the date of this Amendment obtained from the Luxembourg Companies Register and reflecting the situation no more than two Business Days prior to the date of this Amendment and (z) an excerpt from the Luxembourg Companies Register pertaining to the Luxembourg Loan Parties dated no earlier than one Business Day prior to the date of this Amendment;
(f) the Administrative Agent (or its counsel) shall have received a certificate dated as of the Second Amendment Effective Date and signed by a Responsible Officer of the Lead Borrower, certifying that the conditions precedent specified in clauses (c), (i) and (k) of this Section 5 have been satisfied;
(g) the Administrative Agent shall have received from the Lead Borrower a solvency certificate from the chief financial officer or chief accounting officer or other officer with equivalent duties of the Lead Borrower, in the form of Exhibit I to the Credit Agreement;
(h) the Administrative Agent shall have received a customary opinion from (i) Ropes & Grxx XLP, as New York counsel for the Loan Parties, (ii) Loyens & Loeff, as Luxembourg and Swiss counsel for the Loan Parties, (iii) NautaDutilh, as Luxembourg and Dutch counsel for the Administrative Agent, (iv) Wixxxxx Xxx, as Irish counsel for the Administrative Agent and (v) Rexx Xxxxx XLP, as German, Singapore and Hong Kong counsel for the Loan Parties, in each case, reasonably acceptable to the Administrative Agent dated the Second Amendment Effective Date;
(i) the Specified Representations shall be true and correct in all material respects as of the Second Amendment Effective Date;
(j) no partial or total physical destruction of any of the Deer Park MMA Facility, Louisville PMMA Facility, Bristol PMMA Facility, Porto Marghera ACH Facility and Rho MMA/PMMA Facility has occurred after the Put Option Date (each, an “Affected Facility” and, collectively, the “Affected Facilities”) that would reasonably be expected as of the date of such occurrence to result in (i) the Expected Production Volume to fall below one-half (i.e. 50%) of the Historical Production Volume for a given Affected Facility, and (ii) the capital expenditures required to restore such Affected Facility to exceed fifty million (50,000,000) euros (a “Material Adverse Change”) unless such Material Adverse Change has been remedied by the Sellers before the Expiration Date in accordance with the provisions set forth in Section 3.1(a) of the Arkema Acquisition Agreement as in effect on December 14, 2020 (each of the capitalized terms used but not defined in this paragraph shall have the meaning assigned to such term in the Arkema Acquisition Agreement as in effect on December 14, 2020 or the Second Amended and Restated Commitment Letter, dated as of January 28, 2021, as applicable);
(k) at the time of the Second Amendment Effective Date and immediately after giving effect to the incurrence of the 2021 Incremental Term Loans and the consummation of the Acquisition on such date, no Event of Default under Section 8.01(a) or (f) of the Credit Agreement shall have occurred and be continuing or would result therefrom;
(l) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory Borrowers to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel or any arranger with respect to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that 2021 Incremental Term Loans on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on or before the Second Amendment Effective Date and pursuant to any written agreement with the application Borrowers shall have been (or shall substantially contemporaneously be) paid in full in cash, in the case of expenses to the proceeds thereof, extent invoiced at least three Business Days prior to the Borrower and its Subsidiaries, on a consolidated basis, are solvent.Closing Date (except as otherwise agreed by the Borrowers); and
(gm) The the Administrative Agent shall have received, at least one business day two Business Days prior to the Second Amendment Effective Date, all documentation and other information required about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to Borrowers and the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct and a Beneficial Ownership Certification for any Borrower or Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, and (y) that has not been previously provided requested in writing at least 10 Business Days prior to the Administrative Agent.
(h) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as Date. For purposes of such date, except to determining whether the extent expressly made as of an earlier date, conditions specified in which case such representations and warranties shall this Section 5 have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing satisfied on the Second Amendment Effective Date or after giving effect to date hereof, by the funding of 2021 Incremental Term Loans, the Administrative Agent and each 2021 Incremental Term Loan Lender that has executed this Amendment and any extensions of credit requested shall be deemed to have consented to, approved or accepted, or to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect satisfied with, each document or other matter required hereunder to any Mortgaged Property that contains one be consented to or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably approved by or acceptable or satisfactory to the Administrative Agent and otherwise in compliance with or such 2021 Incremental Term Loan Lender, as the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Boardcase may be.
Appears in 1 contract
Samples: Credit Agreement (Trinseo S.A.)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Administrative Agent):
(a) The the Administrative Agent (or its counsel) shall have received (x) a counterpart signature page of this Amendment, Amendment duly executed and delivered by the Administrative AgentHoldings, the Borrower and the ABL Lenders.
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective DateAdministrative Agent and each 2018 Refinancing Term Loan Lender and (y) from each Converting Lender, a Converting Lender Consent substantially in the form of Exhibit B heretohereto (the “Converting Lender Consent”) (in each case, with appropriate insertions and attachments and including by way of facsimile or other electronic transmission);
(iib) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in (or its jurisdiction of organization.
(ecounsel) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificatecertificate signed by a Responsible Officer of each Loan Party referred to in clause (a), dated in substantially the form delivered on the Closing Date (i) certifying that the articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Second Amendment Effective DateDate to be true and correct and in force and effect as of such date, substantially in the form of Exhibit L (iii) certifying as to the Amended Credit Agreement, executed incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) to the extent requested by the chief financial officer Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Borrower, certifying that Lenders and each Issuing Bank on the Second Amendment Effective Date, immediately after giving effect to this Amendmenta customary written opinion of (i) Xxxxx Xxxx & Xxxxxxxx LLP, the making of any Loan (in its capacity as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereofspecial New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its Subsidiariescapacity as special Delaware counsel for Holdings, on a consolidated basisthe Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, are solvent.the Borrower and the Subsidiary Guarantors;
(gd) The to the extent requested by the Administrative Agent, the Administrative Agent shall have receivedreceived a certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(e) to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information, at least one business day two Business Days prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and Act (y) has not been previously provided in each case to the Administrative Agent.extent so requested no less than ten Business Days prior to the Second Amendment Effective Date);
(hf) Each of to the representations extent requested by the Administrative Agent in writing not less than five (5) days prior to the Second Amendment Effective Date, to the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), the Lender shall have received a Beneficial Ownership Certification in relation to the Borrower (a “Beneficial Ownership Certification”) (provided that, upon the execution and warranties made delivery by any Loan Party in or pursuant Lender of its signature page to this Amendment, the Amended condition set forth in this clause (f) shall be deemed to be satisfied)
(g) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 9.03 of the Existing Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any applicable engagement letter with the other Loan Documents shall be true and correct in all material respects (Borrower on or in all respects if qualified by materiality) on and as of before the Second Amendment Effective Date as if made on shall have been (or shall substantially contemporaneously be) paid in full in cash (and as in the case of such dateexpenses, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on invoiced at least three Business Days prior to the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.Date);
(jh) The the Administrative Agent shall have received (a) a notice of prepayment of the Existing Term Loans and (b) a Borrowing Request in respect of the 2018 Refinancing Term Loans to be made on the Second Amendment Effective Date; and
(i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”no Event of Default under Sections 7.01(a), (iif) if any or (g) of the buildings Amended Credit Agreement shall exist immediately prior to or after giving effect to the effectiveness of this Amendment. For purposes of determining whether the conditions specified in this Section 5 have been satisfied on such Mortgaged Property is located in a special flood areathe date hereof, a policy by the funding of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to or converting to, as applicable, 2018 Refinancing Term Loans, the Administrative Agent and otherwise in compliance with each 2018 Refinancing Term Loan Lender that has executed this Agreement (or an Assignment and Assumption on the coverage required with respect date hereof; or the applicable Converting Lender Consent on or prior to the particular type of property under the National Flood Insurance Act of 1968 and (iiidate hereof) if such Mortgaged Property is located in a special flood hazard areashall be deemed to have consented to, confirmation that the Borrower has received the notice waived, approved or accepted, or to be satisfied with, each document or other matter required pursuant to Regulation H of the Boardhereunder.
Appears in 1 contract
Samples: First Lien Credit Agreement (Isos Acquisition Corp.)
Second Amendment Effective Date. This The effectiveness of this Second Amendment (is subject to Section 4the satisfaction (or written waiver) shall become effective as of the following conditions (the date (of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”) on which the following conditions precedent have been satisfied:):
(a) The Administrative Agent shall have received counterparts (or written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of this AmendmentSecond Amendment duly executed by (i) each Loan Party, executed (ii) the Administrative Agent, (iii) Lenders constituting Required Revolving Lenders, and delivered by (iv) each L/C Issuer.
(b) The Borrower shall have paid all fees, compensation and reasonable and documented expenses (including, without limitation, reasonable and documented legal fees and expenses) of the Administrative Agent, the Borrower Second Amendment Lead Arranger and the ABL Lenders.
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Revolving Credit Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary payable on or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date (including pursuant to that certain Fee Letter, dated as of March 10, 2023, by and that among the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” Borrower and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided Second Amendment Lead Arranger). The Borrower shall have paid to the Administrative Agent, for the account of each Consenting Lender, a consent fee (“Consent Fee”) equal to 0.15% of the amount of such Xxxxxx’s Revolving Credit Commitments (whether drawn or undrawn) on the Second Amendment Effective Date. Payment of each Consent Fee will be made in immediately available funds in Dollars and will not be subject to counterclaim or set-off for, or be otherwise affected by, any claim or dispute relating to any other matter.
(hc) After giving effect to the amendments to the Credit Agreement contemplated by this Second Amendment, no Default or Event of Default has occurred and is continuing on the Second Amendment Effective Date both before and immediately after giving effect to the transactions contemplated hereunder. (d) Each of the representations and warranties made by any Loan Party in Article III of this Second Amendment, and in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such datethe Second Amendment Effective Date, except to the extent expressly made as of that such representations and warranties refer to an earlier date, in which case such representations and warranties they shall have been so be true and correct in all material respects as of such earlier date.
(i) No Default or Event of Default ; provided that, in each case, such materiality qualifier shall have occurred and not be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect applicable to any Mortgaged Property representations and warranties that contains one already are qualified or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of modified by materiality in the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Boardtext thereof.
Appears in 1 contract
Samples: Credit Agreement (Tutor Perini Corp)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Required Lenders and the Administrative Agent):
(a) The Administrative Agent shall have received a counterpart signature page of this AmendmentAmendment duly executed by each Obligor, executed and delivered by the Administrative Agent, the Borrower Agent and the ABL Lenders constituting the Required Lenders.
(b) All costsThe Administrative Agent shall have received a certificate signed by a Responsible Officer of each Obligor (i) certifying that attached thereto are resolutions evidencing necessary corporate action on their part approving and authorizing the execution, fees delivery and expenses required performance of this Amendment and approving and authorizing the manner in which and by whom this Amendment are to be paid by executed and delivered, and (ii) attaching signature and incumbency certificates of the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for Responsible Officers of such Obligor executing this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary a certificate of status, compliance, good standing or reasonably advisable amendments to, and a reaffirmation agreement like certificate with respect toto each Obligor issued by the appropriate government officials of the jurisdiction of its incorporation or amalgamation, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agentas applicable.
(d) The Administrative Agent shall have received (i) a certificate favourable opinion of each Loan PartyStikeman Elliott LLP, dated Canadian counsel to the Second Amendment Effective DateBorrower, substantially and Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, United States counsel to the Borrower, in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory substance acceptable to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.and the Lenders, addressed to the Administrative Agent, the Lenders and Lxxxxxx’ Counsel;
(e) The Administrative Agent shall have received the executed legal opinion a Notice of Polsinelli PC, counsel Borrowing prior to the Borrower and its Restricted Subsidiaries, Drawdown Date as required in form and substance reasonably acceptable to Section 7.3 of the Administrative Agent.Amended Credit Agreement;
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) All fees required to be made paid on the Second Amendment Effective Date pursuant to that certain Fee Letter, dated as of December 19, 2022 (the “Fee Letter”), among the Canadian Borrower and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.Administrative Agent; and
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(h) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on On and as of the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties of the Obligors set forth in SECTION 4 hereof shall have been so be true and correct as of such earlier datecorrect.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Second Amendment Effective Date. This Refinancing Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) a counterpart signature page of this AmendmentRefinancing Amendment duly executed by each of the Loan Parties, executed and delivered by the Administrative Agent, the Borrower each Swing Line Lender, each L/C Issuer and the ABL Lenderseach New Lender.
(b) All costsThe representations and warranties set forth in Section 4 of this Refinancing Amendment shall be true and correct in all respects on and as of the Second Amendment Effective Date, fees and expenses required to be paid by the Borrower Administrative Agent shall have received a certificate (in form and substance reasonably acceptable to the Administrative Agent), JPMorgan Chase Bankdated as of the Second Amendment Effective Date and signed by a Responsible Officer of the Lead Borrower, N.A., in its capacity certifying as sole lead arranger to such representations and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrowerwarranties.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments toan opinion from each of Xxxxx Xxxxx LLP, U.S. counsel to the Loan Parties and a reaffirmation agreement with respect toXxxxxx Xxxxxxx, the existing collateral security Esq., corporate counsel of Parent, in each case, in form and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate Committed Loan Notice in respect of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions New Term A Loans and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organizationany New Revolving Credit Loans.
(e) The Administrative Agent shall have received (x) a notice of mandatory prepayment of Term Loans pursuant to Section 2.05(b)(v) of the executed legal opinion Credit Agreement and (y) a notice of Polsinelli PC, counsel prepayment of Revolving Credit Loans and Swing Line Loans and Termination of Revolving Credit Commitments pursuant to Section 2.06 of the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative AgentCredit Agreement.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed certificate signed by the chief financial officer a Responsible Officer of the Borrower, certifying that on Lead Borrower designating the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (New Term A Loans as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date Refinancing Term Loans and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solventNew Revolving Credit Commitments as Refinancing Revolving Credit Commitments.
(g) The Administrative Agent shall have receivedreceived such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of execution, delivery and performance of this Refinancing Amendment, the performance of the Credit Agreement and each other applicable Loan Document, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(h) The Borrowers shall have paid all fees and amounts due and payable pursuant to this Refinancing Amendment and/or any letter agreements or fee letters (collectively, the “Fee Letters”) by and between the Borrowers and the Administrative Agent, including, to the extent evidenced by a written invoice, reimbursement or payment of documented and reasonable out-of-pocket expenses in connection with this Refinancing Amendment and any other out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to the Credit Agreement or the Fee Letters.
(i) The Administrative Agent shall have received at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days (1) Business Day prior to the Second Amendment Effective Date all documentation and that other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least three (3) Business Days prior to the Second Amendment Effective Date by the Administrative Agent that it reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(hj) Each The prepayment of (A) the Existing Term A Loans and (B) the Existing Revolving Credit Loans, in each case, shall have been consummated or, substantially concurrently with the incurrence of the representations New Term A Loans or New Revolving Credit Commitments, shall be consummated, in each case with all accrued and warranties made by any Loan Party in or pursuant to this Amendmentunpaid interest on, and premiums and fees related to, the Amended Credit Agreement Existing Term A Loans and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and Revolving Credit Loans, as of applicable, to, but not including, the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier dateDate.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(jk) The Administrative Agent shall have received (i) payment from or on behalf of the Borrowers for the account of each New Lender, of an upfront fee for each such Lender in an amount equal to, with respect to any Mortgaged Property that contains one each New Term A Lender or more buildingsNew Revolving Credit Lender, a “life-of-loan standard flood hazard determination”25 basis points on such New Term A Lender’s and/or New Revolving Credit Lender’s, (ii) if any as applicable, New Term A Commitments or New Revolving Credit Commitments. The Administrative Agent shall notify the Borrowers and the New Lenders of the buildings on Second Amendment Effective Date and such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel notice shall be conclusive and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Boardbinding.
Appears in 1 contract
Samples: Credit Agreement (Yum Brands Inc)
Second Amendment Effective Date. This Amendment (subject to Section 4other than the Post Second Amendment Amendments) shall become effective as of the first date (the “Second Amendment Effective DateDate ”) on which each of the following conditions precedent shall have been satisfied:
(a) The the Administrative Agent shall have received a counterpart signature page of this AmendmentAmendment duly executed by each Loan Party, executed and delivered by the Administrative Agent, each Swing Line Lender, each L/C Issuer, each New Term A Lender, each New Revolving Credit Lender and Lenders representing the Borrower and the ABL Required Lenders.;
(b) All coststhe Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party certifying (i) that the articles of formation or other comparable organizational documents of such Loan Party, fees and expenses required to be paid certified by the Borrower relevant authority of the jurisdiction of organization of such Loan Party and a true and complete copy of the bylaws, operating agreement or comparable governing document of each Loan Party either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) that attached thereto are the written consents of each Loan Party’s governing body authorizing the execution, delivery, performance of, this Amendment and such written consents have not been modified, rescinded or amended and are in full force and effect on the Second Amendment Effective Date without amendment, modification or rescission, and (iii) as to the Administrative Agentincumbency and genuineness of the signature of the officers or other authorized signatories of each Loan Party, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for executing this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.;
(c) The the Administrative Agent shall have received a certificate as of a recent date of the good standing of each Loan Party under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization;
(d) the Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any from each Loan Party reasonably requested by the Administrative Agent (on behalf of any Lender as of the Second Amendment Effective Date) in writing at least three business days prior to Business Days in advance of the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) Date, which documentation or other information is required by United States bank regulatory authorities under applicable “"know your customer” " and anti-money laundering rules and regulations, including the USA PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.;
(he) Each of the representations and warranties made by any Loan Party set forth in or pursuant to Section 4 of this Amendment, the Amended Credit Agreement and the other Loan Documents Amendment shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on Date, and the Administrative Agent shall have received a certificate (in form and substance reasonably acceptable to the Administrative Agent), dated as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect and signed by a Responsible Officer of the Borrower, certifying as to this Amendment such representations and any extensions warranties;
(f) the Administrative Agent shall have received the favorable legal opinion of credit requested Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender party hereto and in form and substance reasonably satisfactory to the Administrative Agent;
(g) all fees and expenses required to be made under paid by (or on behalf of) the Amended Borrower to the Lender, the Administrative Agent (including pursuant to Section 11.04 of the Credit Agreement Agreement) or any arranger pursuant to any written agreement with the Borrower on such date.or before the Second Amendment Effective Date shall have been paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Second Amendment Effective Date);
(jh) The the Administrative Agent shall have received (i) the results of a recent UCC lien search with respect to any Mortgaged Property that contains one or more buildings, each Loan Party and (ii) a “life-of-loan completed standard flood hazard determination”, determination form for the real property covered by the Existing Mortgage (iias defined below) and if any of the buildings on improvements to such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of real property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is are located in a special flood hazard area, confirmation that (A) a notification to the Borrower by the Administrative Agent and countersigned by the Borrower and (B) a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent;
(i) the prepayment of the aggregate outstanding principal amount of (A) (i) the Existing Terms A Loans shall have been consummated or, substantially concurrently with the incurrence of the New Term A Loans, shall be consummated and (B) the Revolving Credit Loans as of the Second Amendment Effective Date (immediately prior to giving effect to the Amendment) shall have been consummated, in each case, together with all accrued and unpaid interest on, and fees related to the Existing Term A Loans and the Existing Revolving Credit Commitments (and Revolving Credit Loans thereunder). The Existing Revolving Credit Commitments shall have been terminated;
(j) the Administrative Agent shall have received payment from or on behalf of the notice Borrower for the account of each New Lender, of an upfront fee for each such Lender in an amount equal to: (i) with respect to each New Lender that is an Existing Term A Lender and/or Existing Revolving Credit Lender, 6 basis points on such Existing Term A Lender’s and/or Existing Revolving Credit Lender’s, as applicable, New Term A Commitments or New Revolving Credit Commitments up to an aggregate amount equal to such Lender’s Existing Term A Loans and Existing Revolving Credit Commitments, and (ii) for all other New Term A Commitments or New Revolving Credit Commitments, 30 basis points on such commitments;
(k) the Administrative Agent shall have received a Request for Credit Extension in respect of the New Term A Loans and any Revolving Credit Loans to be made under the New Revolving Credit Commitments on the Second Amendment Effective Date;
(l) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings attesting to the Solvency of Holdings, the Borrower and the Restricted Subsidiaries on a consolidated basis after giving effect to the transactions contemplated hereby; and
(m) The Administrative Agent shall have received satisfactory evidence of the redemption (including the payment of any accrued and unpaid interest and required redemption premium) of the LPS Notes in full pursuant to Regulation H of the BoardLPS Notes Indenture on the Second Amendment Effective Date.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Second Amendment Effective Date. (a) This Second Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfiedsatisfied or waived by the 2021 Refinancing Term Lenders and the 2021 Refinancing Revolving Credit Lenders:
(ai) The the Administrative Agent shall have received counterparty signature pages of this AmendmentSecond Amendment from each of the Borrower, executed each Guarantor and delivered by the Administrative Agent, the Borrower and the ABL Lenders.each Lender;
(bii) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (iA) a certificate sufficient copies of each Organizational Document of each Loan Party, dated as applicable, and, to the extent applicable, certified as of the Second Amendment Effective Date or a recent date prior thereto by the appropriate Governmental Authority; (B) signature and incumbency certificates of the officers of such Persons executing the Loan Documents on behalf of each Loan Party; (C) copies of resolutions of the Board of Directors or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of this Second Amendment and the other Loan Documents executed in connection with the Second Amendment to which it is a party or by which it or its assets may be bound as of the Second Amendment Effective Date, substantially certified as of the Second Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (D) other than with respect to the form U.K. Borrower, a good standing certificate from the applicable Governmental Authority of Exhibit B heretoeach Loan Party’s jurisdiction of incorporation, with appropriate insertions organization or formation, dated as of the Second Amendment Effective Date or a recent date prior thereto and attachments (E) to the extent requested by the Administrative Agent in respect of the U.K. Borrower, (i) copies of resolutions of its shareholders approving the terms of, and the transactions contemplated by this Second Amendment and (ii) evidence reasonably satisfactory a certificate signed by a Responsible Officer of the U.K. Borrower certifying that the U.K. Borrower Sublimit would not cause any borrowing or similar limit binding on it to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.be exceeded;
(eiii) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificatefavorable opinion of Xxxxx Xxxxxxx LLP, counsel for the Loan Parties, dated as of the Second Amendment Effective Date, substantially in a form consistent with the opinion delivered by Xxxxx Xxxxxxx LLP on the First Amendment Effective Date;
(iv) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (a) that the conditions specified in Sections 5(b) and (c) have been satisfied and (b) that there has been no event or circumstance since September 26, 2020 that has had or could be reasonably expected to have, either individually or in the form aggregate, a Material Adverse Effect;
(v) Concurrently with the making of Exhibit L the 2021 Refinancing Term Loans, (a) the entire aggregate principal amount of the 2018 Refinancing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this Second Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;
(vi) Concurrently with the availability of the 2021 Revolving Credit Facility, (i) the Revolving Credit Commitments in effect immediately prior to this Second Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Revolving Credit Loans outstanding (if any) immediately prior to this Second Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this Second Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;
(vii) Any fees required to be paid pursuant to the Amended Credit Agreement, executed Fee Letter on or before the Second Amendment Effective Date shall have been paid by the chief financial officer of Company to the Borrower, certifying that Administrative Agent on the Second Amendment Effective Date;
(viii) The Company shall have delivered a Committed Loan Notice with respect to the 2021 Refinancing Term Loans, immediately after giving effect and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;
(ix) The Company shall have paid all fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this Amendment, clause (ix) shall be paid by the making of any Loan (as defined in Company to the Amended Credit Agreement) to be made Administrative Agent on the Second Amendment Effective Date Date);
(x) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the application of Beneficial Ownership Regulation, to the proceeds thereof, extent the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent Company shall have received, received written requests therefor at least one business day three (3) Business Days prior to the Second Amendment Effective Date; and
(xi) The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, all documentation and as of the date hereof, such conditions shall be deemed to be satisfied).
(b) Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in Section 6(a) hereof, each Lender that has signed this Second Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other information about any Loan Party reasonably requested matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent in writing at least three business days shall have received notice from such Lender prior to the Second Amendment Effecitve Date specifying its objection thereto.
(c) The Second Amendment Effective Date and that shall not occur if any of the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) conditions set forth or referred to in this Section 6 has not been previously provided to the Administrative Agent.
(h) Each satisfied or waived in accordance with Section 10.01 of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects at or prior to 5:00 p.m., New York City time, on September 27, 2021 (or in all respects if qualified by materiality) on and as it being understood that any such failure of the Second Amendment Effective Date as if made on to occur by such date will not affect any rights or obligations of any Person under the existing Credit Agreement). The Administrative Agent shall promptly notify the Company and as the Lenders of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such dateDate.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Samples: Refinancing Amendment (Hologic Inc)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:satisfied (or waived in accordance with Section 9.02 of the Credit Agreement):
(a) The the Administrative Agent shall have received a counterpart signature page of this AmendmentAmendment duly executed by Holdings, executed and delivered by U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the Administrative Agent, Agent and Lenders who shall constitute the Borrower and the ABL Required Lenders.;
(b) All costs, all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead Agent or any arranger and bookrunner for this Amendment, and the ABL Lenders in connection pursuant to any fee letter with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary Borrower on or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on before the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have receivedbeen (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing extent invoiced at least three business days Business Days prior to the Second Amendment Effective Date and that or such shorter period agreed by the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.Borrower in its sole discretion);
(hc) Each of the representations and warranties made by any of each Loan Party set forth herein and in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such dateDate; provided that, except to the extent expressly made as of that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall have been so be true and correct in all material respects as of such earlier date.; provided, further, that any representation and warranty that is qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects, taking into account such materiality or reference to Material Adverse Effect, on the Second Amendment Effective Date or on such earlier date, as the case may be;
(id) No at the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on continuing; and
(e) the Administrative Agent shall have received a certificate, dated the Second Amendment Effective Date and signed by a Financial Officer or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one President or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any Vice President of the buildings on such Mortgaged Property is located in a special flood areaBorrower, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in confirming compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 conditions set forth in paragraphs (c) and (iiid) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Boardthis Section 4.
Appears in 1 contract
Second Amendment Effective Date. This Second Amendment (subject to Section 4) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:
(ai) The the Administrative Agent shall have received a counterpart signature page of this AmendmentSecond Amendment duly executed by each of the Borrower, executed each Guarantor, each Refinancing Term Lender and delivered by other Lenders (together with the Refinancing Term Lenders) sufficient to constitute, collectively, the Requisite Lenders; and
(ii) the Administrative Agent, the Borrower Agent and the ABL Lenders.
(b) All costs, fees Lenders and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal their respective counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments toan original executed copy of the favorable written opinion of Xxxxx Xxxxxxx LLP, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under counsel for the Credit AgreementParties, such amendments dated as of the Second Amendment Effective Date and reaffirmation agreement to be in form and substance reasonably satisfactory to the Administrative Agent., addressed to the Administrative Agent and the Lenders as of the Second Amendment Effective Date after giving effect to this Second Amendment (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent and such Lenders);
(diii) The the Administrative Agent shall have received (iA) a certificate copy of each Loan PartyOrganizational Document of each Credit Party certified, dated to the Second extent applicable, as of a recent date by the applicable Governmental Authority, or, if reasonably acceptable to the Administrative Agent, a certification by an Authorized Officer that the applicable Organizational Documents delivered in connection with the Closing Date and/or on First Amendment Effective Date, remain in full force and effect and have not been amended, modified, revoked or rescinded since the First Amendment Effective Date, as applicable, (B) signature and incumbency certificates of the officers or directors of each Credit Party executing this Second Amendment, substantially in the form of Exhibit B heretothe closing certificates delivered on the Closing Date, with appropriate insertions and attachments and (iiC) evidence reasonably satisfactory resolutions of the Board of Directors or similar governing body of each Credit Party approving and, to the Administrative Agent that each Loan Party is extent required in good standing in its jurisdiction any jurisdiction, resolutions of organization.
(e) The Administrative Agent shall have received the executed legal opinion meeting of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiariesshareholders of a Credit Party, in form each case authorizing the execution, delivery and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the performance of this Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making certified as of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment and (D) a good standing certificate (to the application extent such concept is applicable in the relevant jurisdiction) from the applicable Governmental Authority of the proceeds thereofeach Credit Party’s jurisdiction of incorporation, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.organization or formation;
(giv) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(h) Each of the representations and warranties made by any Loan Party of the Credit Parties set forth in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents Section 4 hereof shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such date, (except to the extent expressly made as of such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been so be true and correct in all material respects on and as of such earlier date.
(i) No Default or Event of Default ), and the Administrative Agent shall have occurred and be continuing on received a certificate, dated as of the Second Amendment Effective Date of the Borrower, confirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to Administrative Agent;
(v) the Borrower shall have paid (i) all fees and other amounts due and payable to GS Bank, X.X. Xxxxxx Securities LLC (“JPMS”), Citigroup Global Markets Inc. (“CGMI”), Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated (“MLPFS”) as joint lead arrangers, bookrunners and co-syndication agent (in such capacities, the “Lead Arrangers”) and the Administrative Agent in connection with this Second Amendment, including reimbursement or after giving effect payment of reasonable costs and expenses actually incurred by the Lead Arrangers or the Administrative Agent in connection with this Second Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the extent that Borrower has received a reasonably detailed invoice for such costs and expenses prior to the Second Amendment Effective Date and (ii) a consent fee to the Administrative Agent for the account of each Lender that has evidenced its consent hereto as provided in Section 5(i) or as otherwise agreed by the Administrative Agent and the Borrower (including in a “cashless roll” letter), in an amount equal to 0.05% of the Loans and/or Revolving Commitment, as applicable, of such Lender;
(vi) concurrently with the making of the Refinancing Tranche B Term Loans, (a) the entire aggregate principal amount of the Existing Tranche B Term Loans and (b) all accrued interest, fees and other amounts (including any amounts due pursuant to Section 2.18 of the Credit Agreement) accrued prior to the Second Amendment Effective Date in connection therewith shall have been paid (or, in the case of principal, deemed paid pursuant to this Amendment Second Amendment) in full and any extensions all Interest Periods in respect of credit requested to be made under the Amended Credit Agreement on such date.thereof shall have been terminated;
(jvii) The the Borrower shall have delivered a Funding Notice with respect to the Refinancing Tranche B Term Loans, and a notice of prepayment with respect to the Existing Tranche B Term Loans, in each case, in accordance with the Credit Agreement; and
(viii) the Administrative Agent shall have received a payment in the amount of $200,000,000 to effect the voluntary prepayment of the Refinancing Tranche B Term Loans in accordance with Section 2.13 of the Credit Agreement immediately after giving effect to the Refinancing (the “Prepayment”). The Administrative Agent hereby acknowledges that (i) the Borrower hereby provides notice under Section 2.13 of the Credit Agreement of such Prepayment as of the Second Amendment Effective Date and (ii) all notice requirements set forth in Section 2.13 of the Credit Agreement with respect to any Mortgaged Property such Prepayment have been satisfied (it being understood and agreed that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any the Prepayment shall be made with internally generated cash of the buildings Borrower and not the proceeds of the incurrence of Indebtedness).
(b) Subject to Section 9.05(b) of the Credit Agreement, the Second Amendment Effective Date shall not occur if each of the conditions set forth or referred to in this Section 5 has not been satisfied or waived in accordance with Section 10.05 of the Credit Agreement at or prior to 5:00 p.m., New York City time, on August 2, 2013 (it being understood that any such Mortgaged Property is located in a special flood area, a policy failure of flood insurance that (x) covers each the Second Amendment Effective Date to occur by such parcel date will not affect any rights or obligations of any Person under the existing Credit Agreement). The Administrative Agent shall promptly notify the Borrower and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H Lenders of the BoardSecond Amendment Effective Date.
Appears in 1 contract
Second Amendment Effective Date. This Amendment (subject to Section 4) ), and the obligation of each New Term Lender to make New Term Loans, shall become effective as of the date (the “Second Amendment Effective Date”) on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received (i) this Amendment, executed and delivered by the Administrative Agent, Agent and the Borrower and Persons committing herein to provide New Term Loans in an aggregate principal amount sufficient to refinance in full the Existing Term Loans outstanding under the Credit Agreement immediately prior to the Second Amendment Effective Date and (ii) reasonably satisfactory evidence that the Existing Term Loans have been paid in full or replaced with the New Term Loans hereunder and loans outstanding under the ABL LendersLoan Documents shall have been sufficiently reduced (in each case, all accrued interest thereon and other amounts outstanding in respect of such repaid or replaced amount have been or will be paid).
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(c) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, the Lead Arrangers and the New Term Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Partythe Borrower, dated the Second Amendment Effective Date, substantially in the form of Exhibit B C hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli Xxxxxxxxxx PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the issuance of the New Notes, the use of proceeds thereof (including in respect of the Term Loan Prepayment), the making by each New Term Lender of any Loan (as defined in the Amended Credit Agreement) New Term Loans to be made by it on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one three business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three ten business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (xi) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (yii) has not been previously provided to the Administrative Agent.
(h) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and thereon, (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 1968, and (z) has a term ending not later than the maturity of the Indebtedness secured by such Mortgage and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
(i) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date immediately prior to and immediately after giving effect to the incurrence of the New Term Loans and the use of proceeds thereof, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(j) The Administrative Agent shall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the Credit Agreement or discharged on or prior to the Second Amendment Effective Date pursuant to documentation satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Second Amendment Effective Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries for each subsequent fiscal quarter ended (that is not a fiscal year-end) at least 45 days before the Second Amendment Closing Date; provided that filing of the required financial statements on form 10-K and form 10-Q by the Borrower will satisfy the foregoing requirements
(l) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date immediately prior to and immediately after giving effect to this Amendment, the incurrence of the New Term Loans and the use of proceeds thereof.
Appears in 1 contract
Second Amendment Effective Date. This Neither (x) the amendment and restatement of the Original Credit Agreement as contemplated hereby, nor (y) the obligation of any Second Amendment (subject Additional Term Lender or Second Amendment Additional Revolving Lender to Section 4) provide any Second Amendment Term Commitment Increase or Second Amendment Revolving Commitment Increase, respectively, shall become effective as of until the date (the “Second Amendment Effective Date”) on which each of the following conditions precedent have been satisfied:shall be satisfied (or waived in accordance with Section 9.02 or Section 2.20, as applicable):
(a) The Administrative Agent (or its counsel) shall have received from (x) the Required Lenders or the Administrative Agent acting at the direction of the Required Lenders (excluding, for the avoidance of doubt, the Second Amendment Additional Term Lenders and the Second Amendment Additional Revolving Lenders), (y) each Second Amendment Additional Term Lender and Second Amendment Additional Revolving Lender and (z) each Loan Party either (i) a counterpart of this AmendmentAgreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement or, executed in the case of any Lender (other than any Second Amendment Additional Term Lender or Second Amendment Additional Revolving Lender), in lieu of the signed counterpart referred to in clauses (i) and delivered by (ii) above, an addendum to this Agreement in a form satisfactory to the Administrative Agent and the Borrower and furnished to the Lenders in connection with this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Borrower Lenders (including, without limitation, the Second Amendment Additional Term Lenders and the ABL Second Amendment Additional Revolving Lenders.
) and the Issuing Banks and dated the Second Amendment Effective Date) of each of (bi) All costsXxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, fees New York counsel for the Loan Parties, substantially in the form of Exhibit E-1, (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel for the Loan Parties, substantially in the form of Exhibit E-2, (iii) Durham, Xxxxx & Xxxxxxx P.C., Utah counsel for the Loan Parties, substantially in the form of Exhibit E-3, (iv) Xxxxxxx Xxxxxxx Xxxxxx LLP, Florida counsel for the Loan Parties, substantially in the form of Exhibit E-4 and expenses required to be paid by (v) Xxxxxxxx Xxxxxxx LLP, Georgia counsel for the Loan Parties, substantially in the form of Exhibit E-5. Each of Holdings and the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal hereby requests such counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrowerdeliver such opinions.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, H with appropriate insertions insertions, or otherwise in form and attachments and (ii) evidence substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching the documents or certifications, as applicable, referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received (i) as to each Loan Party, either (x) a copy of each Organizational Document of such Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority or (y) written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s Organizational Documents certified and delivered to the Administrative Agent on the Effective Date pursuant to paragraphs (c) and (d), respectively, of Section 4.01 of the Original Credit Agreement remain in full force and effect on the Second Amendment Effective Date without modification or amendment since such original delivery, (ii) as to each Loan Party, either (x) signature and incumbency certificates of the Responsible Officers of such Loan Party executing the Loan Documents to which it is a party or (y) written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s signature and incumbency certificates delivered to the Administrative Agent on the Effective Date pursuant to paragraphs (c) and (d) of Section 4.01 of the Original Credit Agreement remain true and correct as of the Second Amendment Effective Date, (iii) copies of resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution and delivery, as applicable, and performance of the Loan Documents to which it is a party, certified as of the Second Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing in its certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of organizationincorporation, organization or formation as of a reasonably recent date.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PCall fees and other amounts (which may, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to at the Administrative Agent’s option in consultation with the Borrower, be offset against the Term Loans made on the Second Amendment Effective Date) previously agreed in writing by the Joint Bookrunners and the Borrower to be due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced at least three Business Days prior to the Second Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(f) The Administrative Agent Lenders shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by certificate from the chief financial officer of the Borrower, Borrower certifying that as to the solvency of the Borrower and its Subsidiaries on the Second Amendment Effective Date, immediately a consolidated basis after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solventTransactions.
(g) The Administrative Agent shall have receivedreceived all requests, at least one business day prior notices and certificates required to be delivered by the Borrower or a Financial Officer under (i) Section 2.20(a)(i) in respect of the Second Amendment Effective Date, all documentation Revolving Commitment Increase and other information about any Loan Party reasonably requested by the Administrative Agent (ii) Section 2.20(a)(ii) in writing at least three business days prior to respect of the Second Amendment Effective Date Term Commitment Increase, in each case in compliance with such applicable Section and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative AgentSection 2.20(b)(i).
(h) Each of the representations and warranties made by any Loan Party conditions set forth in or pursuant Section 4.02 shall have been satisfied (it being understood that all references to this Amendment“the date of such Borrowing” in such Section 4.02 shall be deemed to refer to the Second Amendment Effective Date). The Administrative Agent shall notify Holdings, the Amended Credit Agreement Borrower and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as Lenders of the Second Amendment Effective Date as if made on Date, and as of such date, except to the extent expressly made as of an earlier date, in which case such representations notice shall be conclusive and warranties shall have been so true and correct as of such earlier datebinding.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Samples: Credit Agreement (Endurance International Group Holdings, Inc.)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as upon the execution and delivery hereof by each Loan Party, the Administrative Agent and each of the Lenders; provided that Section 1 and 2 hereof shall not become effective until the date (the “Second Amendment Effective Date”) on which when the following additional conditions precedent have also been satisfied:
(a) The the Administrative Agent shall have received this Amendmenta certificate of a Responsible Officer of the Company dated the date hereof, certifying as to the representations and warranties made by each Loan Party contained in Section 3 hereof;
(b) the Administrative Agent shall have received a fee letter duly executed and delivered by the Company (the “Amendment Fee Letter”);
(c) the Administrative Agent, Agent shall have received a Loan Notice with respect to the Borrower Term Loans to be funded pursuant to the Second Amendment Term Commitments on the Second Amendment Effective Date;
(d) the Administrative Agent and the ABL Lenders.
Lenders shall have received (bi) All costs, all fees and expenses required to be paid by on the Borrower Second Amendment Effective Date pursuant to the Amendment Fee Letter and (ii) all other reasonable and documented out of pocket expenses (including, without limitation, legal fees of counsel to the Administrative Agent), JPMorgan Chase Bankto the extent invoiced prior to the Second Amendment Effective, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and owing pursuant to the ABL Lenders Loan Documents (which amounts may be offset against the proceeds of the Loans funded in connection with herewith); provided, however, that the Amended Credit Agreement and this Amendment Loan Parties shall not be responsible for payment of any expenses (including the reasonable and documented including, without limitation, legal fees and expenses of legal counsel to the Administrative Agent) shall have been paid owing relating to the extent due and invoiced First Amendment to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate dated as of each Loan PartySeptember 13, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.2022; and
(e) The Administrative Agent Lenders shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days Business Days prior to the Second Amendment Effective Date all documentation and that other information regarding the Administrative Agent reasonably determines (x) is Loan Parties required by United States bank regulatory authorities Governmental Authorities under applicable “know your customer” customer and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT ActPatriot Act and the Canadian AML Acts, and (y) has not been previously provided in each case to the Administrative Agent.
(h) Each extent reasonably requested of the representations and warranties made by any Loan Party in or pursuant Borrower at least 10 Business Days prior to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on and as of (or such date, except shorter period agreed to by the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier dateCompany).
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, a “life-of-loan standard flood hazard determination”, (ii) if any of the buildings on such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Board.
Appears in 1 contract
Samples: Credit Agreement (Morningstar, Inc.)
Second Amendment Effective Date. This Amendment (subject to Section 4other than the Post Second Amendment Amendments) shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:
(a) The the Administrative Agent shall have received a counterpart signature page of this AmendmentAmendment duly executed by each Loan Party, executed and delivered by the Administrative Agent, each Swing Line Lender, each L/C Issuer, each New Term A Lender, each New Revolving Credit Lender and Lenders representing the Borrower and the ABL Required Lenders.;
(b) All coststhe Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party certifying (i) that the articles of formation or other comparable organizational documents of such Loan Party, fees and expenses required to be paid certified by the Borrower relevant authority of the jurisdiction of organization of such Loan Party and a true and complete copy of the bylaws, operating agreement or comparable governing document of each Loan Party either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) that attached thereto are the written consents of each Loan Party’s governing body authorizing the execution, delivery, performance of, this Amendment and such written consents have not been modified, rescinded or amended and are in full force and effect on the Second Amendment Effective Date without amendment, modification or rescission, and (iii) as to the Administrative Agentincumbency and genuineness of the signature of the officers or other authorized signatories of each Loan Party, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for executing this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.;
(c) The the Administrative Agent shall have received a certificate as of a recent date of the good standing of each Loan Party under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization;
(d) the Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined in the Amended Credit Agreement) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any from each Loan Party reasonably requested by the Administrative Agent (on behalf of any Lender as of the Second Amendment Effective Date) in writing at least three business days prior to Business Days in advance of the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) Date, which documentation or other information is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.;
(he) Each of the representations and warranties made by any Loan Party set forth in or pursuant to Section 4 of this Amendment, the Amended Credit Agreement and the other Loan Documents Amendment shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Second Amendment Effective Date as if made on Date, and the Administrative Agent shall have received a certificate (in form and substance reasonably acceptable to the Administrative Agent), dated as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect and signed by a Responsible Officer of the Borrower, certifying as to this Amendment such representations and any extensions warranties;
(f) the Administrative Agent shall have received the favorable legal opinion of credit requested Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender party hereto and in form and substance reasonably satisfactory to the Administrative Agent;
(g) all fees and expenses required to be made under paid by (or on behalf of) the Amended Borrower to the Lender, the Administrative Agent (including pursuant to Section 11.04 of the Credit Agreement Agreement) or any arranger pursuant to any written agreement with the Borrower on such date.or before the Second Amendment Effective Date shall have been paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Second Amendment Effective Date);
(jh) The the Administrative Agent shall have received (i) the results of a recent UCC lien search with respect to any Mortgaged Property that contains one or more buildings, each Loan Party and (ii) a “life-of-loan completed standard flood hazard determination”, determination form for the real property covered by the Existing Mortgage (iias defined below) and if any of the buildings on improvements to such Mortgaged Property is located in a special flood area, a policy of flood insurance that (x) covers each such parcel and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of real property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is are located in a special flood hazard area, confirmation that (A) a notification to the Borrower by the Administrative Agent and countersigned by the Borrower and (B) a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent;
(i) the prepayment of the aggregate outstanding principal amount of (A) (i) the Existing Terms A Loans shall have been consummated or, substantially concurrently with the incurrence of the New Term A Loans, shall be consummated and (B) the Revolving Credit Loans as of the Second Amendment Effective Date (immediately prior to giving effect to the Amendment) shall have been consummated, in each case, together with all accrued and unpaid interest on, and fees related to the Existing Term A Loans and the Existing Revolving Credit Commitments (and Revolving Credit Loans thereunder). The Existing Revolving Credit Commitments shall have been terminated;
(j) the Administrative Agent shall have received payment from or on behalf of the notice Borrower for the account of each New Lender, of an upfront fee for each such Lender in an amount equal to: (i) with respect to each New Lender that is an Existing Term A Lender and/or Existing Revolving Credit Lender, 6 basis points on such Existing Term A Lender’s and/or Existing Revolving Credit Lender’s, as applicable, New Term A Commitments or New Revolving Credit Commitments up to an aggregate amount equal to such Lender’s Existing Term A Loans and Existing Revolving Credit Commitments, and (ii) for all other New Term A Commitments or New Revolving Credit Commitments, 30 basis points on such commitments;
(k) the Administrative Agent shall have received a Request for Credit Extension in respect of the New Term A Loans and any Revolving Credit Loans to be made under the New Revolving Credit Commitments on the Second Amendment Effective Date;
(l) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings attesting to the Solvency of Holdings, the Borrower and the Restricted Subsidiaries on a consolidated basis after giving effect to the transactions contemplated hereby; and
(m) The Administrative Agent shall have received satisfactory evidence of the redemption (including the payment of any accrued and unpaid interest and required redemption premium) of the LPS Notes in full pursuant to Regulation H of the BoardLPS Notes Indenture on the Second Amendment Effective Date.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Black Knight Financial Services, Inc.)
Second Amendment Effective Date. This Amendment (subject to Section 4) shall become effective as of the date (the “Second Amendment Effective Date”) on which the following conditions precedent have been satisfiedfirst above written when and only when:
(a) The Administrative Agent shall have received this Amendment, executed and delivered by the Administrative Agent, the Borrower and the ABL Lenders.
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments toof the following, at Administrative Agent’s office, duly executed and a reaffirmation agreement with respect todelivered and in form, the existing collateral security substance and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by the Borrower, each of the Lenders, the Administrative Agent., Issuing Bank, and Swingline Lender and the Consent and Agreement attached to this Amendment executed by the Guarantors;
(dii) The replacement Notes for the Lenders whose Commitment has changed executed by the Borrower in favor of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as of the Second Amendment Effective Date;
(iii) from the Borrower and the Guarantors, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent shall have received may reasonably require, certifying (i) resolutions of its board of directors, managers or members (or their equivalent) authorizing the execution and performance of this Amendment which such Person is executing in connection herewith, (ii) the incumbency and signature of the officer executing this Amendment, and (iii) there has been no change in such Person’s Organization Documents from the copies of such Person’s Organization Documents most recently delivered to the Administrative Agent and Lenders or attaching any amendments or restatements thereof;
(iv) a certificate from Borrower (i) representing and warranting that, on and as of each Loan Party, dated the Second Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions before and attachments and (ii) evidence reasonably satisfactory after giving effect to the Administrative Agent that each Loan Party is increase in good standing in its jurisdiction Commitments resulting hereunder (A) no Default or Event of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel Default exists or would exist prior to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect to this Amendment, the making of any Loan (as defined increase in the Amended Credit AgreementCommitments, (B) to be made on the Second Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(h) Each of the representations and warranties made by any Loan Party contained in or pursuant to this Amendment, the Amended Credit Agreement Article V and the other Loan Documents shall be are true and correct in all material respects (or except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects if qualified by materialityrespects) on and as of the Second Amendment Effective Date as if made on and as of such dateDate, except to the extent expressly made as of that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall have been so they are true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such earlier date.
, and except that the representations and warranties contained in subsections (ia) No Default or Event and (b) of Default Section 5.06 shall have occurred be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (C) all financial covenants in Section 7.15 would be continuing satisfied on a pro forma basis as of the most recent testing date and on the Second Amendment Effective Date or after giving effect to this actual Credit Exposure on the Second Amendment and any extensions of credit requested to be made under the Amended Credit Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildingsEffective Date, a “life-of-loan standard flood hazard determination”if any, (ii) if any ratifying and confirming each of the buildings on such Mortgaged Property is located Loan Documents, (iii) agreeing that all Loan Documents shall apply to the Obligations as they are or may be increased by this Amendment and (iv) agreeing that its obligations and covenants under each Loan Document are otherwise unimpaired by this Amendment and shall remain in a special flood areafull force and effect; and
(v) an opinion from Xxxxx Lovells US LLP, a policy of flood insurance that (x) covers counsel to each such parcel Loan Party and the building(s) located thereon General Partner, in form and (y) is written in an amount that is substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage its counsel.
(b) Borrower shall have paid:
(i) all recording, handling, amendment and other fees required with respect to be paid to Administrative Agent pursuant to any Loan Documents for which Borrower has received an invoice at least one (1) Business Day prior to the particular type of property under Second Amendment Effective Date;
(ii) the National Flood Insurance Act of 1968 arrangement fee to be paid to the Arranger pursuant to the Second Amendment Fee Letter, which arrangement fee once paid will be fully earned and nonrefundable; and
(iii) if the upfront fee to be paid to the Administrative Agent pursuant to the Second Amendment Fee Letter for the account of each Lender increasing its Commitment, which upfront fee will be paid to each Lender increasing its Commitment that sends its signed signature page to this Amendment to the Administrative Agent’s counsel by noon, New York time on December 29, 2011, which fee once paid will be fully earned and nonrefundable.
(c) Borrower shall have paid, in connection with such Mortgaged Property is located in a special flood hazard areaLoan Documents, confirmation that the all other fees and reimbursements required to be paid to Administrative Agent pursuant to any Loan Documents for which Borrower has received an invoice at least one (1) Business Day prior to the notice required pursuant to Regulation H Second Amendment Effective Date, or otherwise due Administrative Agent and including invoiced fees and disbursements of the BoardAdministrative Agent’s attorneys.
Appears in 1 contract
Second Amendment Effective Date. This Amendment (subject to Section 4a) shall become effective Each of the Borrower, the Equityholder, the Seller and the Collateral Manager hereby confirms, acknowledges and agrees as of the date (the “Second Amendment Effective Date”) on Date that its obligations contained in each of the Transaction Documents to which the following conditions precedent have been satisfied:
(a) The Administrative Agent it is a party are, and shall have received this Amendment, executed and delivered by the Administrative Agent, the Borrower and the ABL Lenders.
(b) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A.continue, in its capacity as sole lead arranger full force and bookrunner for this Amendmenteffect and are hereby ratified and confirmed in all respects, except that, on and the ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(c) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated after the Second Amendment Effective Date, substantially each reference in the form Transaction Documents to “the Loan and Security Agreement”, “thereunder”, “thereof” or words of Exhibit B hereto, with appropriate insertions like import shall mean and attachments and (ii) evidence reasonably satisfactory to the Administrative Agent that each Loan Party is in good standing in its jurisdiction of organization.
(e) The Administrative Agent shall have received the executed legal opinion of Polsinelli PC, counsel to the Borrower and its Restricted Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received be a solvency certificate, dated the Second Amendment Effective Date, substantially in the form of Exhibit L to the Amended Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the Second Amendment Effective Date, immediately after giving effect reference to this Amendment, the making of any Loan (Agreement as defined in the Amended Credit Agreement) to be made amended and restated on the Second Amendment Effective Date and each reference in the application Transaction Documents to “the Securities Account Control Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the proceeds thereof, the Borrower Securities Account Control Agreement as amended and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to restated as of the Second Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the Second Amendment Effective Date and that the Administrative Agent reasonably determines (x) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (y) has not been previously provided to the Administrative Agent.
(h) . Each of the representations and warranties made by any Loan Party in or pursuant to this AmendmentBorrower, the Amended Credit Agreement Equityholder, the Seller and the other Loan Documents shall be true Collateral Manager acknowledges that it expects to receive substantial direct and correct in all material respects (or in all respects if qualified by materiality) on and indirect benefits as a result of the amendments made to the Agreement as of the Second Amendment Effective Date and the transactions contemplated hereby and (x) reaffirms its obligations under this Agreement and each other Transaction Document to which it is a party, (y) reaffirms all Liens on the Collateral which have been granted by it in favor of the Administrative Agent pursuant to the Transaction Documents and (z) acknowledges and agrees that the grants of security interests by and the guarantees of the Borrower, the Equityholder, the Seller and the Collateral Manager, as if applicable, contained in the Transaction Documents are, and shall remain, in full force and effect immediately after giving effect to the amendments made on and to this Agreement as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to this Amendment and any extensions of credit requested to be made under the Amended Credit Date. This Agreement on such date.
(j) The Administrative Agent shall have received (i) with respect to any Mortgaged Property that contains one or more buildings, constitute a “life-of-loan standard flood hazard determination”, (ii) if any Transaction Document” for all purposes of the buildings on such Mortgaged Property is located in a special flood areaLoan and Security Agreement, a policy of flood insurance that (x) covers each such parcel the Securities Account Control Agreement and the building(s) located thereon and (y) is written in an amount that is reasonably satisfactory to the Administrative Agent and otherwise in compliance with the coverage required with respect to the particular type of property under the National Flood Insurance Act of 1968 and (iii) if such Mortgaged Property is located in a special flood hazard area, confirmation that the Borrower has received the notice required pursuant to Regulation H of the Boardother Transaction Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.)
