Common use of Second Lien Credit Agreement Clause in Contracts

Second Lien Credit Agreement. The “Loan Documents” (as defined in the Second Lien Credit Agreement) required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date shall have been, or substantially concurrently with the making of the Loans hereunder on the Closing Date shall be, duly executed and delivered by each Loan Party that is party thereto and the term loans under the Second Lien Credit Agreement shall have been, or substantially concurrently with the making of the Loans hereunder on the Closing Date will be, funded. For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans hereunder, the Administrative Agent and each Lender shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be. Notwithstanding the foregoing, to the extent that the Lien on any Collateral is not or cannot be created or perfected on the Closing Date (other than (a) execution and delivery of the Security Agreement by the Loan Parties, (b) a Lien on Collateral that is of the type that may be perfected by the filing of a UCC-1 financing statement under the UCC and (c) a Lien on the Capital Stock of each Borrower and each Subsidiary Guarantor (other than any subsidiary of the Target the certificate evidencing the Capital Stock of which has not been delivered to NewCo2 at least two Business Days prior to the Closing Date, to the extent NewCo2 has used commercially reasonable efforts to procure delivery thereof) that may be perfected on the Closing Date by the delivery of a stock or equivalent certificate (together with a stock power or similar instrument endorsed in blank for the relevant certificate)), in each case after NewCo2’s use of commercially reasonably efforts to do so without undue burden or expense, then the creation and/or perfection of such Lien shall not constitute a condition precedent to the availability or initial funding of the Credit Facilities on the Closing Date.

Second Lien Credit Agreement. The “(ii) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.09), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan Documents” (in respect of which that Defaulting Lender has failed to fund its portion thereof as defined in the Second Lien Credit Agreement) required by this Agreement, as determined by the terms Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the Second Lien Credit Agreement principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto. (iii) [Reserved]. (iv) [Reserved]. (b) If the Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be executed on the Closing Date shall have been, or substantially concurrently with the making of the Loans hereunder on the Closing Date shall be, duly executed and delivered by each Loan Party that is party thereto and the term loans under the Second Lien Credit Agreement shall have been, or substantially concurrently with the making of the Loans hereunder on the Closing Date will be, funded. For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans hereundera Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and each subject to any conditions set forth therein, that Lender shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be. Notwithstanding the foregoingwill, to the extent applicable, purchase that the Lien on any Collateral is not or cannot be created or perfected on the Closing Date (other than (a) execution and delivery portion of outstanding Loans of the Security Agreement other Lenders or take such other actions as the Administrative Agent may reasonably determine to be necessary to cause the Loans to be held on a pro rata basis by the Loan PartiesLenders in accordance with their ratable shares, (b) whereupon that Lender will cease to be a Lien Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on Collateral that is behalf of the type Borrower while that may be perfected by the filing of Lender was a UCC-1 financing statement under the UCC Defaulting Lender; and (c) a Lien on the Capital Stock of each Borrower and each Subsidiary Guarantor (other than any subsidiary of the Target the certificate evidencing the Capital Stock of which has not been delivered to NewCo2 at least two Business Days prior to the Closing Dateprovided, further, that except to the extent NewCo2 has used commercially reasonable efforts to procure delivery thereof) that may be perfected on the Closing Date otherwise expressly agreed by the delivery of a stock or equivalent certificate (together with a stock power or similar instrument endorsed in blank for the relevant certificate))affected parties, in each case after NewCo2’s use of commercially reasonably efforts no change hereunder from Defaulting Lender to do so without undue burden or expense, then the creation and/or perfection of such Lien shall not Lender will constitute a condition precedent to the availability waiver or initial funding release of the Credit Facilities on the Closing Dateany claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.

Second Lien Credit Agreement. The “Loan Documents” (as defined in a) On or prior to the Second Lien Credit AgreementInitial Borrowing Date, (i) required the Borrower shall have (x) received gross cash proceeds of at least $120,000,000 from the incurrence of loans by it under the terms of the Second Second-Lien Credit Agreement and (y) utilized the full amount of the net proceeds of such loans to be executed on make a one-time cash payment (in the Closing Date form of a Dividend, intercompany loan and/or repayment of intercompany loans) to Holdings and (ii) Holdings shall have been, or substantially concurrently utilized the full amount of the cash proceeds received by it as provided in preceding clause (i) to make payments owing in connection with the making Transaction prior to the utilization by the Borrower or Holdings of any proceeds of Loans for such purpose. (b) On the Loans hereunder on Initial Borrowing Date, (i) the Closing Date shall be, duly executed and delivered by each Loan Party that is party thereto and incurrence of Indebtedness pursuant to the term loans under the Second Second-Lien Credit Agreement shall have been, or substantially concurrently been consummated in accordance with the making terms and conditions of the Loans hereunder on the Closing Date will beapplicable Documents therefor and all applicable law, funded. For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans hereunder, (ii) the Administrative Agent shall have received true and each Lender correct copies of all Second-Lien Credit Documents, certified as such by an appropriate officer of Holdings, (ii) all such Second-Lien Credit Documents and all terms and conditions thereof (including, without limitation, amortization, maturities, interest rates, covenants, defaults, remedies, guaranties and guarantors) shall be deemed in form and substance reasonably satisfactory to each Agent and the Required Lenders, (iii) all such Second-Lien Credit Documents shall be in full force and effect and (iv) all conditions precedent to the consummation of the incurrence of loans pursuant to the Second-Lien Credit Agreement as set forth therein shall have consented tobeen satisfied, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be and not waived unless consented to or approved by or acceptable or satisfactory to each Agent and the Administrative Agent or such Lender, as the case may be. Notwithstanding the foregoingRequired Lenders, to the extent that the Lien on any Collateral is not or cannot be created or perfected on the Closing Date (other than (a) execution and delivery of the Security Agreement by the Loan Parties, (b) a Lien on Collateral that is of the type that may be perfected by the filing of a UCC-1 financing statement under the UCC and (c) a Lien on the Capital Stock reasonable satisfaction of each Borrower Agent and each Subsidiary Guarantor (other than any subsidiary of the Target the certificate evidencing the Capital Stock of which has not been delivered to NewCo2 at least two Business Days prior to the Closing Date, to the extent NewCo2 has used commercially reasonable efforts to procure delivery thereof) that may be perfected on the Closing Date by the delivery of a stock or equivalent certificate (together with a stock power or similar instrument endorsed in blank for the relevant certificate)), in each case after NewCo2’s use of commercially reasonably efforts to do so without undue burden or expense, then the creation and/or perfection of such Lien shall not constitute a condition precedent to the availability or initial funding of the Credit Facilities on the Closing DateRequired Lenders.