Fifth Amendment Effective Date. This Fifth Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agent): (a) The Administrative Agent shall have received a counterpart signature page of this Fifth Amendment duly executed by each Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender (which, for the avoidance of doubt, shall constitute the Required Lenders). (b) The 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, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, or otherwise certifying there have been no changes to such formation or organizational documents since the date such documents were previously delivered to the Administrative Agent (ii) certifying that attached thereto are the resolutions of the Board of Directors (or other governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Fifth Amendment and the other Loan Documents, as applicable, as being in full force and effect without modification or amendment as of the Fifth 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 good standing certificates described in clause (c) below. (c) The Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and to the extent such concept exists. (i) At least three (3) Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the Fifth Amendment Effective Date and that the Administrative Agent and the Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (ii) if any Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entity” customer under the Beneficial Ownership Regulation, such Borrower shall deliver a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower (as defined in the Amended Credit Agreement). (e) The Administrative Agent shall have received a written legal opinion, reasonably satisfactory to it (addressed to it and each 2023-A Refinancing Term Lender party hereto and dated the Fifth Amendment Effective Date) of: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties; and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel to the Loan Parties. (f) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent. (g) [Reserved]. (h) The Administrative Agent shall have received: (i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be made on the Fifth Amendment Effective Date; and (ii) A notice of prepayment with respect to the Existing Term Loans in accordance with Section 2.05(a) of the Existing Credit Agreement. (i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President. (j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
Appears in 1 contract
Fifth Amendment Effective Date. This Fifth Amendment shall become effective as of the date first date written above (the “"FIFTH AMENDMENT EFFECTIVE DATE") upon the satisfaction of each of the following conditions:
(a) the Lender shall have received each of the following documents, in each case in form and substance satisfactory to the Lender:
(i) counterparts hereof executed by the Borrower and the Lender;
(ii) a certificate of the chief financial officer of the Borrower certifying that all conditions precedent to the effectiveness of this Fifth Amendment have been satisfied;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Fifth Amendment Effective Date certifying (A) the names and true signatures of the incumbent officers of the Borrower authorized to sign this Fifth Amendment and the other Transaction Documents executed in connection with this Fifth Amendment to which it is a party, (B) that the By-laws of the Borrower have not been amended or otherwise modified since the date of the most recent certification thereof by the Secretary or Assistant Secretary of the Borrower delivered to the Lender and remain in full force and effect as of the Fifth Amendment Effective Date”, (C) on which each that the Articles of Incorporation of the following conditions shall Borrower have not been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agent):
(a) The Administrative Agent shall have received a counterpart signature page of this Fifth Amendment duly executed by each Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender (which, for the avoidance of doubt, shall constitute the Required Lenders).
(b) The 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, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, amended or otherwise certifying there have been no changes to such formation or organizational documents modified since the date such documents were previously of the most recent certification thereof by the Secretary of State of Delaware delivered to the Administrative Agent Lender and remain in full force and effect as of the Fifth Amendment Effective Date and (iiD) certifying that attached thereto are the resolutions of the Board Borrower's board of Directors (or other governing body) of such Loan Party directors approving and authorizing the execution, delivery and performance of this Fifth Amendment and the other Transaction Documents executed in connection with this Fifth Amendment to which the Borrower is a party; and
(iv) such additional documentation as the Lender may reasonably request;
(b) no law, regulation, order, judgment or decree of any Governmental Authority shall, and the Lender shall not have received any notice that litigation is pending or threatened which is likely to, enjoin, prohibit or restrain the consummation of the transaction contemplated by this Fifth Amendment, except for such laws, regulations, orders or decrees, or pending or threatened litigation that in the aggregate could not reasonably be expected to result in a Material Adverse Effect;
(c) all of the representations and warranties of the Borrower contained in this Fifth Amendment, the Credit Agreement and the other Loan Documents, as applicable, as being Documents shall be true and correct in full force all material respects on and effect without modification or amendment as of the Fifth Amendment Effective Date, as if then made (iii) attaching signature other than representations and incumbency certificates of the Responsible Officers of such Loan Party executing Loan Documents to warranties which it is a party and (iv) attaching the good standing certificates described in clause (c) below.
(c) The Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified expressly speak as of a recent date different date, which shall be true and correct in all material respects as of that date);
(d) all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by the appropriate Governmental Authority of the state of incorporation or formation, as the case may this Fifth Amendment shall be satisfactory in all respects in form and substance to the extent such concept exists.Lender; and
(ie) At least three (3) Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders no Event of Default or Potential Event of Default shall have received all documentation occurred and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to be continuing on the Fifth Amendment Effective Date and that the Administrative Agent and the Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (ii) if any Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entity” customer under the Beneficial Ownership Regulation, such Borrower shall deliver a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation or will result after giving effect to such Borrower (as defined in the Amended Credit Agreement).
(e) The Administrative Agent shall have received a written legal opinion, reasonably satisfactory to it (addressed to it and each 2023-A Refinancing Term Lender party hereto and dated the Fifth Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties; and
(ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel to the Loan Parties.
(f) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be made on the Fifth Amendment Effective Date; and
(ii) A notice of prepayment with respect to the Existing Term Loans in accordance with Section 2.05(a) of the Existing Credit Agreement.
(i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President.
(j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
Appears in 1 contract
Fifth Amendment Effective Date. This Fifth Section 3 of this Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agentapplicable Lenders):
(a) The the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Fifth Amendment duly executed by Holdings, Intermediate Holdings, each Loan PartyBorrower, the Administrative Agent and each 2023-A Agent, the 2023 Refinancing Term Loan Lender (which, for and the avoidance of doubt, shall constitute the Required Lenders).2023 Incremental Term Loan Lender;
(b) The the Administrative Agent (or its counsel) shall have received a certificate signed the Acknowledgment and Confirmation, substantially in the form of Exhibit B attached hereto, executed and delivered by a Responsible Officer of each Loan Party (i) attaching the articles of formation or other or formation documents of such than any Loan Party and organized under the bylawslaws of The Netherlands (collectively, operating agreement or comparable governing document of such the “Dutch Loan Party, Parties”)) (in each case, certified including by an appropriate Governmental Authorityway of facsimile or other electronic transmission);
(c) the Administrative Agent (or its counsel) shall have received on the Fifth Amendment Effective Date the Irish law deed of confirmation dated on or about the Fifth Amendment Effective Date among Holdings, to the extent applicableLead Borrower, Intermediate Holdings, Trinseo Finance Ireland Unlimited Company, Trinseo Ireland Global IHB Limited, Trinseo Services Ireland Limited and the Collateral Agent;
(d) the Administrative Agent (or otherwise certifying there its counsel) shall have been no changes to such formation received on the Fifth Amendment Effective Date, (i) the Hong Kong law-governed third deed of confirmatory security dated on or organizational documents since about the date such documents were previously delivered of this Amendment (in respect of the debenture dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo (Hong Kong) Limited and the Collateral Agent (the “HK Debenture Third Deed of Confirmatory Security”), (ii) the Hong Kong law governed third deed of confirmatory security dated on or about the date of this Amendment (in respect of the share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo Holdings Asia Pte. Ltd. and the Collateral Agent (the “HK Share Charge Third Deed of Confirmatory Security”), (iii) the Singapore law governed third composite deed of confirmatory security dated on or about the date of this Amendment (in respect of (A) the Singapore law security deed dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021, (B) the Singapore law share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021, and (C) the Singapore law share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo Holdings Asia Pte. Ltd., Trinseo Holding B.V. and the Collateral Agent (the “Singapore Third Composite Deed of Confirmatory Security”, and together with the HK Debenture Third Deed of Confirmatory Security and the HK Share Charge Third Deed of Confirmatory Security, collectively, the “Security Confirmations”); (iv) a letter of authorization and confirmation from Trinseo Holdings Asia Pte. Ltd. addressed to White & Case Pte. Ltd. in connection with the registration of the (A) Singapore Third Composite Deed of Confirmatory Security and (B) HK Share Charge Third Deed of Confirmatory Security with the Accounting and Corporate Regulatory Authority of Singapore; and (v) evidence that any process agent referred to in the HK Share Charge Third Deed of Confirmatory Security and the Singapore Third Composite Deed of Confirmatory Security has accepted its appointment as agent for service of process;
(e) all fees and expenses required to be paid by (or on behalf of) the Borrowers to the Administrative Agent (including the reasonable and documented fees and expenses of White & Case LLP as counsel for the Administrative Agent), the Lead Arrangers (including the reasonable and documented fees and expenses of P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as counsel to the Lead Arrangers), 2023 Refinancing Term Loan Lender or 2023 Incremental Term Loan Lender with respect to the transactions and amendments contemplated by this Amendment on or before the Fifth Amendment Effective Date pursuant to any written agreement with the Borrowers shall have been (or shall substantially contemporaneously be) paid in full in cash;
(f) no Default or Event of Default shall have occurred and be continuing;
(g) the representations and warranties contained in Section 4 of this Amendment shall be true and correct on and as of the Fifth Amendment Effective Date and the Administrative Agent (or its counsel) shall have received a certificate dated as of the Fifth Amendment Effective Date signed by a Responsible Officer of the Lead Borrower certifying as to the same;
(h) the Administrative Agent shall have received from the Lead Borrower a solvency certificate from the chief financial officer of the Lead Borrower or, if no chief financial officer has been appointed, from the Permanent Representative, in the form of Exhibit I to the Amended Credit Agreement;
(i) the Administrative Agent shall have received (i) either (x) a copy of the certificate or articles of incorporation, articles of association (statuts) or equivalent organizational document, including all amendments thereto, of each Loan Party (other than the Dutch Loan Parties), 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 to the Administrative Agent, (ii) a certificate of the secretary, an authorized representative, assistant secretary or managing director (as applicable) of each Loan Party (other than the Dutch Loan Parties) dated the Fifth Amendment Effective Date and certifying (A) that (x) attached thereto are the resolutions is a true and complete copy of the Board certificate of Directors incorporation (and, where applicable, certificate of change of name), by-laws, articles of association or other governing body) operating, management, partnership or similar agreement of such Loan Party approving as in effect on the Fifth 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 Fifth Amendment Amendment, the Acknowledgment and Confirmation delivered pursuant to clause (b) above and the other Loan DocumentsSecurity Confirmations, as applicablein each case, as being in full force and effect without modification or amendment as of the Fifth 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 that such resolutions have not been modified, rescinded or amended and are in full force and effect (ivas applicable), (C) attaching 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 certificates described in furnished pursuant to clause (cE) below.), (D) as to the incumbency (where applicable) and specimen signature of each officer or authorized 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 (other than the Dutch Loan Parties) from the jurisdiction in which it is organized (as applicable in the relevant jurisdiction except for the Luxembourg Loan Parties and Irish Guarantors), each dated a recent date prior to the Fifth 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), administrative dissolution without liquidation (dissolution administrative sans liquidation), 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 decisions or of administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) issued by the Luxembourg Insolvency Register (Registre de l’insolvabilité) held and maintained with the Luxembourg Companies Register in relation to the Luxembourg Loan Parties dated as no earlier than one Business Day prior to the Fifth Amendment Effective Date and reflecting the situation no more than two Business Days prior to the Fifth Amendment Effective Date 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 Fifth Amendment Effective Date;
(cj) The the Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and to the extent such concept exists.
customary opinion from (i) At Ropes & Gray LLP, as New York counsel for the Loan Parties, (ii) L▇▇▇▇▇ & Loeff N.V., as Luxembourg and Swiss counsel for the Loan Parties, (iii) NautaDutilh Avocats Luxembourg S.à r.▇. (société à responsabilité limitée), as Luxembourg counsel for the Administrative Agent, (iv) W▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as Irish counsel for the Administrative Agent, (v) R▇▇▇ ▇▇▇▇▇ LLP, as Singapore and Hong Kong counsel for the Loan Parties, and (vi) S▇▇▇▇▇ and H▇▇▇▇▇▇▇ PLLC, as Kentucky counsel for the Loan Parties, in each case, reasonably acceptable to the Administrative Agent and addressed to the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender and dated the Fifth Amendment Effective Date;
(k) the Administrative Agent shall have received, at least three (3) two Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders shall have received all documentation and other information required about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the Fifth Amendment Effective Date and that the Administrative Agent Borrowers and the Lenders reasonably determine is required by United States regulatory authorities Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (ii) if a Beneficial Ownership Certification for any Borrower (as defined in the Amended Credit Agreement) or Guarantor that qualifies as a “legal entityentity customer” customer under the Beneficial Ownership Regulation, such Borrower shall deliver a certification regarding beneficial ownership as required by that has been requested in writing at least 10 Business Days prior to the Beneficial Ownership Regulation in relation to such Borrower (as defined in the Amended Credit Agreement).Fifth Amendment Effective Date;
(el) The the Administrative Agent shall have received a written legal opinion, reasonably satisfactory Committed Loan Notice with respect to it (addressed to it and each 2023-A the 2023 Refinancing Term Lender party hereto Loans and dated the Fifth Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties2023 Incremental Term Loans; and
(iim) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel the Administrative Agent shall have received an Officer’s Certificate of the Lead Borrower certifying as to the Loan Parties.
(fincurrence of the 2023 Incremental Term Loans pursuant to Section 2.16(d)(iii)(B) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, . For purposes of determining whether the Borrowers shall conditions specified in this Section 5 have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be made been satisfied on the Fifth Amendment Effective Date; and
(ii) A notice , by the funding of prepayment with respect the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans, as applicable, the Administrative Agent, the 2023 Refinancing Term Loan Lender, and the 2023 Incremental Term Loan 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 Existing Administrative Agent, the 2023 Refinancing Term Loans in accordance with Section 2.05(a) of Loan Lender, and the Existing Credit Agreement2023 Incremental Term Loan Lender, as the case may be.
(i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President.
(j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Trinseo PLC)
Fifth Amendment Effective Date. This Fifth Amendment The amendments set forth in Section 1 of this Agreement shall become effective as upon satisfaction of the first date following conditions (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agent):
(a) The Administrative the execution and delivery of this Amendment by the undersigned Loan Parties, Agent and each Lender as of the date hereof;
(b) Agent shall have received a counterpart signature page certificate of this Fifth Amendment a duly executed by authorized officer of or other person authorized to represent each applicable Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender Party (whichexcluding, for the avoidance of doubt, shall constitute the Required Lenderseach Released Guarantor).
(b) The Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party , certifying (i) attaching the articles of formation or other or formation documents of such Loan Party and the bylawsexcept as attached thereto, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, or otherwise certifying there have been no changes to such formation or organizational documents since the date such documents were Organization Documents of each applicable Loan Party previously delivered to the Administrative Agent (ii) certifying that attached thereto Agent, and such Organization Documents are the resolutions of the Board of Directors (or other governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Fifth Amendment and the other Loan Documents, as applicable, as being in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents to which such Loan Party is a party is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; (iii) all governmental and other third party approvals and consents, if any, with respect to this Agreement have been obtained and are in effect; and (iv) to the title, name and signature of each Person authorized to sign the Loan Documents to which such Loan Party is a party. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Loan Party in writing;
(c) Agent shall have received a certificate, in form and substance reasonably satisfactory to it, from a Responsible Officer of each Borrower certifying that, after giving effect without modification to this Amendment and the transactions hereunder, (i) the Canadian Borrower and its consolidated Restricted Subsidiaries, taken as a whole, and the U.S. Borrower and its consolidated Restricted Subsidiaries, taken as a whole, are Solvent; (ii) no Default or amendment Event of Default exists; and (iii) the representations and warranties set forth in Section 9 of the Loan Agreement are true and correct in all material respects as of the Fifth Amendment Effective DateDate (or, with respect to representations and warranties qualified by materiality, in all respects) (iiiexcept for representations and warranties that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) attaching signature and incumbency certificates of the Responsible Officers as of such Loan Party executing Loan Documents to which it is a party and (iv) attaching the good standing certificates described in clause (c) below.earlier date);
(cd) The Administrative Agent shall have received a certificate UCC, PPSA, and Lien searches and other evidence satisfactory to Agent that its Liens are the only Liens upon the Collateral, except Permitted Liens;
(e) all accrued fees and expenses of good standing, existence Agent (including the fees and expenses of counsel (including any local counsel) for Agent) due from the Loan Parties on or its equivalent prior to the Fifth Amendment Effective Date pursuant to the Loan Documents shall have been paid in full in cash;
(f) the Notes Transactions shall be consummated substantially simultaneously with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and Fifth Amendment Effective Date; and
(g) to the extent such concept exists.
(i) At reasonably requested by Agent or any Lender at least three (3) 10 Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders each Borrower shall have received provided all documentation and other information about the Loan Parties that as Agent or any Lender shall have been reasonably requested in writing at least ten (10) Business Days prior to the Fifth Amendment Effective Date and that the Administrative Agent and the Lenders reasonably determine is required by United States regulatory authorities under connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including without limitation the PATRIOT Patriot Act and (ii) if Beneficial Ownership Regulation. If any Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entityentity customer” customer under the Beneficial Ownership Regulation, such Borrower it shall deliver have provided a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation Certification to Agent and Lenders in relation to such Borrower (as defined in the Amended Credit Agreement)Borrower.
(e) The Administrative Agent shall have received a written legal opinion, reasonably satisfactory to it (addressed to it and each 2023-A Refinancing Term Lender party hereto and dated the Fifth Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties; and
(ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel to the Loan Parties.
(f) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be made on the Fifth Amendment Effective Date; and
(ii) A notice of prepayment with respect to the Existing Term Loans in accordance with Section 2.05(a) of the Existing Credit Agreement.
(i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President.
(j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
Appears in 1 contract
Fifth Amendment Effective Date. This Fifth Amendment The amendments effected by paragraph 2 above shall become effective as of the first date on November 7, 1997 (the “"Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived "), subject to receipt by the 2023-A Refinancing Term Lenders Banks and the Administrative Agent):
(a) The Administrative Agent shall have received a counterpart signature page of this Fifth Amendment duly executed by each Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender (which, for the avoidance of doubt, shall constitute the Required Lenders).
(b) The Administrative Agent shall have received a certificate signed by a Responsible Officer of each Loan Party (i) attaching the articles of formation on or other or formation documents of such Loan Party and the bylaws, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, or otherwise certifying there have been no changes to such formation or organizational documents since the date such documents were previously delivered to the Administrative Agent (ii) certifying that attached thereto are the resolutions of the Board of Directors (or other governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Fifth Amendment and the other Loan Documents, as applicable, as being in full force and effect without modification or amendment as of the Fifth 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 good standing certificates described in clause (c) below.
(c) The Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and to the extent such concept exists.
(i) At least three (3) Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the Fifth Amendment Effective Date of the following, each in form and that substance satisfactory to the Administrative Banks, Agent and the Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (ii) if any Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entity” customer under the Beneficial Ownership Regulation, such Borrower shall deliver a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower (as defined in the Amended Credit Agreement).their respective counsel:
(ea) The Administrative Agent shall have received a written legal opinionThis Amendment duly executed by Borrower, reasonably satisfactory to it each Bank and Agent;
(addressed to it and each 2023-b) A Refinancing Term Lender party hereto and Certificate of the Secretary of Borrower, dated the Fifth Amendment Effective Date) of:
, certifying (i) that the Certificate of Incorporation and Bylaws of Borrower, in the forms delivered to Agent on the Effective Date, are in full force and effect and have not been amended, supplemented, revoked or repealed since such date; (ii) that attached thereto are true and correct copies of resolutions duly adopted by the Board of Directors of Borrower and continuing in effect, which authorize the execution, delivery and performance by Borrower of this Amendment and the consummation of the transactions contemplated hereby; (iii) that there are no proceedings for the dissolution or liquidation of Borrower (commenced or threatened); and (iv) the incumbency, signatures and authority of the officers of Borrower authorized to execute, deliver and perform the Amendment;
(c) A favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York , counsel to the Loan Parties; andBorrower, as to such matters as Agent may reasonably request;
(iid) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLPA Certificate of Good Standing (or comparable certificate) for Borrower, Alberta, British Columbia and Ontario counsel certified as of a recent date prior to the Loan Parties.Fifth Amendment Effective Date by the Secretary of State of California;
(fe) Subject to the provisions Payment of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment expenses of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of Agent's counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be made on through the Fifth Amendment Effective Date; and
(iif) A notice of prepayment with respect Such other evidence as Agent or any Bank may reasonably request to establish the Existing Term Loans in accordance with Section 2.05(a) accuracy and completeness of the Existing Credit Agreementrepresentations and warranties and the compliance with the terms and conditions contained in this Amendment.
(i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President.
(j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
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Fifth Amendment Effective Date. This Fifth Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agent):satisfied:
(a) The the Administrative Agent shall have received this Fifth Amendment, executed and delivered by the Administrative Agent, each Loan Party and each Term Lender listed on Schedule 2.01 of the Amended Credit Agreement;
(b) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent or any arranger pursuant to any fee letter with the Borrower on or before the Fifth Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Fifth Amendment Effective Date or such shorter period agreed by the Borrower in its sole discretion);
(c) the representations and warranties of each Loan Party set forth herein and in the Loan Documents shall be true and correct in all material respects on and as of the Fifth Amendment Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall 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 Fifth Amendment Effective Date or on such earlier date, as the case may be;
(d) at the time of and immediately after giving effect to this Fifth Amendment, no Default or Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a counterpart signature page certificate, dated the Fifth Amendment Effective Date and signed by a Financial Officer or the President or a Vice President of the Borrower, confirming compliance with the conditions set forth in paragraphs (c) and (d) of this Fifth Amendment duly executed by each Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender (which, for the avoidance of doubt, shall constitute the Required Lenders).Section 6;
(bf) The the Administrative Agent shall have received a certificate signed by favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties (i) dated as of the Fifth Amendment Effective Date and (ii) in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a Responsible Officer copy of (i) organizational document of each Loan Party (i) attaching the articles of formation or other or formation documents of such Loan Party and the bylaws, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authoritycertified, to the extent applicable, or otherwise certifying there have been no changes to such formation or organizational documents since as of a recent date by the date such documents were previously delivered to the Administrative Agent applicable Governmental Authority, (ii) certifying that attached thereto are signature and incumbency certificates of the responsible officers of each Loan Party executing the Loan Documents to which it is a party, (iii) copies of resolutions of the Board board of Directors (directors or other managers, shareholders, partners, and/or similar governing body) bodies of such each Loan Party approving and authorizing the execution, delivery and performance of this Loan Documents to which it is a party, certified as of the Fifth Amendment and the other Effective Date by a secretary, an assistant secretary or a responsible officer of such Loan Documents, as applicable, Party as being in full force and effect without modification or amendment as of the Fifth 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 a good standing certificates described in clause certificate (cto the extent such concept, or an analogous concept, exists) below.from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
(ch) The the Administrative Agent shall have received a certificate of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and to the extent such concept exists.
(i) At at least three (3) Business Days prior to the Fifth Amendment Effective Date, the Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the Fifth Amendment Effective Date and that the Administrative Agent and the Lenders reasonably determine is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act Act, that has been requested at least ten days prior to the Fifth Amendment Effective Date and (ii) if any to the extent the Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entityentity customer” customer under the Beneficial Ownership Regulation, such Regulation and a Lender has requested in a written notice to the Borrower shall deliver at least 10 days prior to the Fifth Amendment Effective Date a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation Certification in relation to the Borrower, such Lender shall have received such Beneficial Ownership Certification with respect to the Borrower at least three Business Days prior to the Fifth Amendment Effective Date (as defined provided that, upon the execution and delivery by such Lender of its signature pages to this Fifth Amendment, the conditions set forth in this clause (h) shall be deemed to be satisfied);
(i) the Borrower shall have delivered to the Administrative Agent the notice required by Section 2.03 of the Amended Credit Agreement).
(e) The Administrative Agent shall have received a written legal opinion, reasonably satisfactory to it (addressed to it and each 2023-A Refinancing Term Lender party hereto and dated the Fifth Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties; and
(iij) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel to the Loan Parties.
(f) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing all Existing Initial Term Loans to be made on shall have been continued as or replaced with (as applicable) Initial Term Loans under the Fifth Amendment Effective Date; and
Amended Credit Agreement and (ii) A notice of prepayment with respect to the all Existing Fourth Amendment Term Loans in accordance shall have been continued as or replaced with Section 2.05(a(as applicable) of Fourth Amendment Term Loans under the Existing Amended Credit Agreement.
(i) The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature of the transactions contemplated hereby), dated the Fifth Amendment Effective Date, of the Initial Borrower’s President.
(j) This Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement.
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Fifth Amendment Effective Date. This Fifth Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2023-A Refinancing Term Lenders and the Administrative Agent):
(a) The the Administrative Agent shall have received a counterpart signature page of this Fifth Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent and each 2023-A Refinancing Term Lender (whichcertain Revolving Lenders, for the avoidance of doubtwho shall, shall constitute collectively, represent the Required Revolving Lenders).;
(b) The Administrative Agent shall have received a certificate signed all expenses required to be paid by a Responsible Officer of each Loan Party (ior on behalf of) attaching the articles of formation or other or formation documents of such Loan Party and the bylaws, operating agreement or comparable governing document of such Loan Party, in each case, certified by an appropriate Governmental Authority, to the extent applicable, or otherwise certifying there have been no changes to such formation or organizational documents since the date such documents were previously delivered Borrower to the Administrative Agent (ii) certifying that attached thereto are the resolutions including pursuant to Section 9.03 of the Board of Directors (Credit Agreement and pursuant to Section 6 hereof) on or other governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Fifth Amendment and the other Loan Documents, as applicable, as being in full force and effect without modification or amendment as of before the Fifth 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 good standing certificates described in clause (c) below.
(c) The Administrative Agent Date shall have received a certificate of good standing, existence been (or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation, as the case may be and shall substantially contemporaneously be) paid in full in cash (to the extent such concept exists.
(i) At invoiced at least three (3) Business Days prior to the Fifth Amendment Effective Date, );
(c) the Administrative Agent representations and warranties set forth in Article 3 of the Lenders Credit Agreement shall have received be true and correct in all documentation material respects on and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to as of the Fifth Amendment Effective Date with the same effect as though such representations and that the Administrative Agent and the Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (ii) if any Borrower (as defined in the Amended Credit Agreement) qualifies as a “legal entity” customer under the Beneficial Ownership Regulation, such Borrower shall deliver a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower (as defined in the Amended Credit Agreement).
(e) The Administrative Agent shall have received a written legal opinion, reasonably satisfactory to it (addressed to it and each 2023-A Refinancing Term Lender party hereto and dated the Fifth Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP New York counsel to the Loan Parties; and
(ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Alberta, British Columbia and Ontario counsel to the Loan Parties.
(f) Subject to the provisions of Section 10.04 of the Existing Credit Agreement, the Borrowers shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in connection with this Fifth Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arranger or the Administrative Agent in connection with this Fifth Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arranger and the Administrative Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received:
(i) A Request for Credit Extension in respect of the 2023-A Refinancing Term Loans to be warranties had been made on the Fifth Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period;
(d) no Event of Default under Section 7 of the Credit Agreement shall be continuing at the time of or immediately after giving effect to the effectiveness of this Amendment; and
(iie) A notice of prepayment the Incremental Liquidity Facility Credit Agreement shall become effective simultaneously with respect the Fifth Amendment Effective Date. By executing this Amendment, the Required Revolving Lenders and the Administrative Agent shall be deemed to the Existing Term Loans in accordance with Section 2.05(a) have consented to, approved or accepted, or be satisfied with, or have waived, each of the Existing Credit Agreement.
(i) preceding conditions. The Administrative Agent shall have received post a solvency certificate, substantially in the form set forth in Exhibit Q to the Existing Credit Agreement (taking into account the nature notice of the transactions contemplated hereby), dated effectiveness and occurrence of the Fifth Amendment Effective Date, of which shall be conclusive. The Administrative Agent and the Initial Borrower’s President.
Revolving Lenders party hereto (jwho collectively represent the Required Revolving Lenders) This acknowledge and agree that the Fifth Amendment shall comply with Section 2.15(d) of the Existing Credit AgreementEffective Date is September 25, 2020.
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Sources: First Lien Credit Agreement (Isos Acquisition Corp.)