Third Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent): (a) the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately after giving effect to this Amendment) the Required Lenders; (b) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), 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 Third Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the 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 Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank on the Third Amendment Effective Date, a customary written opinion of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors; (d) to the extent requested by the Administrative Agent, the Administrative Agent shall have received 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 two Business Days prior to the Third Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested no less than ten Business Days prior to the Third Amendment Effective Date); (f) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third 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 Third Amendment Effective Date); (g) the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the Third Amendment Effective Date in accordance with the requirements of the Credit Agreement; and (h) no Event of Default under Sections 7.01(a), (f) or (g) of the 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 the date hereof, by funding the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunder.
Appears in 1 contract
Sources: First Lien Credit Agreement (Isos Acquisition Corp.)
Third Amendment Effective Date. This Neither (x) the amendment and restatement of the Original Credit Agreement as contemplated hereby, nor (y) the obligation of any Third Amendment Additional Term Lender or Third Amendment Additional Revolving Lender to provide any Third Amendment Term Commitment Increase or Third Amendment Revolving Commitment Increase, respectively, shall become effective as of until the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been be satisfied (or waived by the Administrative Agentin accordance with Section 9.02 or Section 2.20, as applicable):
(a) the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately after giving effect to this Amendment) the Required Lenders;
(b) the The Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer from (w) the Required Lenders under (and as defined in) the Original Credit Agreement or the Administrative Agent acting at the direction of such Required Lenders (excluding, for the avoidance of doubt, the Third Amendment Additional Term Lenders and the Third Amendment Additional Revolving Lenders), (x) the Required Revolving Lenders under (and as defined in) the Original Credit Agreement or the Administrative Agent acting at the direction of such Required Revolving Lenders (excluding, for the avoidance of doubt, the Third Amendment Additional Revolving Lenders), (y) each Third Amendment Additional Term Lender and Third Amendment Additional Revolving Lender and (z) each Loan Party either (i) a counterpart of this Agreement 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, in the case of any Lender (other than any Third Amendment Additional Term Lender or Third Amendment Additional Revolving Lender), in lieu of the signed counterpart referred to in clause (a), in substantially the form delivered on the Closing Date clauses (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 Amendmentabove, the transactions contemplated therein and authorizing execution and delivery thereof, certified by an addendum to this Agreement in a Responsible Officer of such Loan Party as of the Third Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as form satisfactory to the incumbency Administrative Agent and genuineness of the signatures of Borrower and furnished to the officers or other authorized signatories of such Loan Party executing Lenders in connection with this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;Agreement.
(cb) The Administrative Agent shall have received a written opinion (addressed to the extent requested by the Administrative Agent, the Administrative Agent Lenders (or its counsel) shall have receivedincluding, on behalf of itself without limitation, the Third Amendment Additional Term Lenders and the Lenders Third Amendment Additional Revolving Lenders) and each the Issuing Bank on Banks and dated the Third Amendment Effective Date, a customary written opinion ) of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary GuarantorsLoan Parties, (ii) DLA Piper LLP in its capacity as special ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel for Holdingsthe Loan Parties, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia Durham, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C., Utah counsel for Holdingsthe Loan Parties, (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Florida counsel for the Borrower Loan Parties, and (v) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Georgia counsel for the Subsidiary Guarantors;
(d) Loan Parties, in each case in form and substance reasonably satisfactory to the extent requested by the Administrative Agent, . Each of Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of good standing each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit E with appropriate insertions, or otherwise in form and 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 such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified applicable, as of a recent date by the appropriate 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 Incremental Amendment Effective Date pursuant to paragraphs (d) and (e), respectively, of Section 4.03 of the Original Credit Agreement remain in full force and effect on the Third 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 Incremental Amendment Effective Date pursuant to paragraphs (d) and (e) of Section 4.03 of the Original Credit Agreement remain true and correct as of the Third 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 Third 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 certificate (to the extent such concept exists) from the applicable Governmental Authority of the state each Loan Party’s jurisdiction of formation;incorporation, organization or formation as of a reasonably recent date.
(e) to the extent requested by the Administrative Agent, the The Administrative Agent shall have received all documentation fees and other informationamounts (which may, at least two Business Days the Administrative Agent’s option in consultation with the Borrower, be offset against the Term Loans made on the Third Amendment Effective Date) previously agreed in writing by the Joint Bookrunners and the Borrower to be due and payable on or prior to the Third Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested no less than ten Business Days prior to the Third Amendment Effective Date);
(f) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expensesincluding, to the extent invoiced at least three Business Days prior to the Third 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 Lenders shall have received a certificate from the chief financial officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis immediately after giving effect to the Third Amendment Transactions.
(g) the The Administrative Agent shall have received a Borrowing Request in respect certificate of a Financial Officer of the New Term Loans Borrower (i) certifying that upon giving effect to be made on the Third Amendment Effective Date in accordance with Revolving Commitment Increase and the requirements Third Amendment Term Commitment Increase and the consummation of the Credit Agreement; and
Third Amendment Transactions, (hA) no Event of Default under Sections 7.01(a), will have occurred and be continuing or will result therefrom and (fB) or the Borrower will be in compliance on a Pro Forma Basis (g) treating the Third Amendment Revolving Commitment Increase as fully drawn and excluding from the calculation of Consolidated Senior Secured Indebtedness the cash proceeds of the Credit Agreement shall exist immediately prior to or after giving effect to Third Amendment Revolving Commitment Increase and the effectiveness Third Amendment Term Commitment Increase) with the Financial Performance Covenant as of this Amendment. For purposes the end of determining whether the most recently ended Test Period and (ii) providing reasonably detailed calculations demonstrating compliance with clause (i)(B) above.
(h) Each of the conditions specified set forth in this Section 5 4.02 shall have been satisfied on (it being understood that all references to “the date hereof, by funding the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) of such Borrowing” in such Section 4.02 shall be deemed to have consented torefer to the Third Amendment Effective Date). The Administrative Agent shall notify Holdings, waivedthe Borrower and the Lenders of the Third Amendment Effective Date, approved or accepted, or to and such notice shall be satisfied with, each document or other matter required hereunderconclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Endurance International Group Holdings, Inc.)
Third Amendment Effective Date. This Third Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the 2020 Refinancing Term Lenders and the Administrative Agent):
(a) the The Administrative Agent shall have received a counterpart signature page of this Third Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent, Agent and each New 2020 Refinancing Term Lender and certain other Lenders(which, who shallfor the avoidance of doubt, collectively with the New Term Lenders, represent (immediately after giving effect to this Amendment) shall constitute the Required Lenders;).
(b) the The Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), in substantially the form delivered on the Closing Date (i) certifying that attaching the articles of formation (or equivalent document) 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 the an appropriate Governmental Authority of Authority, to 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 Partyextent applicable, (ii) certifying that attached thereto are the resolutions of the board Board of directors Directors (or other comparable managing body governing body) of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution the execution, delivery and delivery thereofperformance of this Third Amendment and the other Loan Documents, certified by a Responsible Officer of such Loan Party as applicable, as being in full force and effect without modification or amendment as of the Third Amendment Effective Date to be true and correct and in force and effect as of such dateDate, (iii) certifying as to the attaching signature and incumbency and genuineness certificates of the signatures of the officers or other authorized signatories Responsible Officers of such Loan Party executing this Amendment Loan Documents to which it is a party and (iv) attaching the good standing certificates described in clause (dc) of this Section 5;below.
(c) to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank on the Third Amendment Effective Date, a customary written opinion of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d) to the extent requested by the Administrative Agent, the The Administrative Agent shall have received a certificate of good standing (to the extent such concept exists in the relevant jurisdiction) standing, existence or its equivalent with respect to such each Loan Parties referred to in clause (a) (above) Party certified as of a recent date by the appropriate Governmental Authority of the state of incorporation or formation;
(e) , as the case may be and to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information, at such concept exists.
(d) (i) At least two three (3) Business Days prior to the Third 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 Third 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 each case 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 extent so requested no less than ten Business Days prior to the Third Amendment Effective DateAmended Credit Agreement);.
(fe) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third 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 Third Amendment Effective Date);
(g) the The Administrative Agent shall have received a Borrowing written legal opinion reasonably satisfactory to it (addressed to it and each 2020 Refinancing Term Lender party hereto and dated the Third Amendment Effective Date) of:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties; and
(ii) Stikeman Elliot 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 Third Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arrangers or the Administrative Agent in connection with this Third Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent.
(g) The Administrative Agent shall have received a Request for Credit Extension in respect of the New 2020 Refinancing Term Loans to be made on the Third Amendment Effective Date in accordance with the requirements of the Credit Agreement; andDate.
(h) no Event 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 Default under Sections 7.01(athe transactions contemplated hereby), dated the Third Amendment Effective Date, of the Initial Borrower’s chief financial officer.
(fi) or (gThis Third Amendment shall comply with Section 2.15(d) of the Existing Credit Agreement Agreement.
(j) The Administrative Agent shall exist immediately prior to have received payment, by or after giving effect on behalf of the Borrower for the account of each 2020 Refinancing Term Lender, of a consent fee for such lender equal to the effectiveness amount of this Amendment. For purposes 0.25% of determining whether the conditions specified in this Section 5 have been satisfied on aggregate principal amount of the date hereof, by funding the New 2020 Refinancing Term Loans, the Administrative Agent and each New Loans of such 2020 Refinancing Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunderLender.
Appears in 1 contract
Third Amendment Effective Date. This Amendment (subject to the last sentence of this Section 6) and the amendments to the Credit Agreement set forth in Section 4(a) above shall become effective as of the first date hereof (such date, the “Third Amendment Effective Date”); provided that (i) on which each of the following conditions Administrative Agent shall have been satisfied (or waived by received duly executed counterparts hereof that, when taken together, bear the signatures of the Administrative Agent):
, the Company, the Required Lenders, each Increasing/Joinder Lender and each New Swing Line Euro Lender, (aii) the Administrative Agent shall have received 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 Amendment and the Amended Credit Agreement and any other legal matters relating to the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel, (iii) the Company shall deliver to the Administrative Agent a certificate of the Company dated as of the date hereof signed by a Responsible Officer of the Company certifying to the accuracy of the representations and warranties contained in Sections 5(c) and (d), (iv) the Administrative Agent shall have received a counterpart signature page favorable legal opinion of this Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately after giving effect to this Amendment) the Required Lenders;
(b) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), 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 Third Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as counsel to the 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) Company addressed to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have receivedLenders, on behalf of itself the L/C Issuers and the Swing Line Lenders and each Issuing Bank on dated the Third Amendment Effective Date, a customary written which opinion of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, shall be in its capacity as special New York counsel for Holdings, the Borrower form and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d) substance reasonably satisfactory to the extent requested by the Administrative Agent, the Administrative Agent and (v) the Company shall have received a certificate of good standing paid all fees, expenses and other amounts due to (to x) JPMCB and the extent such concept exists Increasing/Joinder Lenders in the relevant jurisdiction) connection with respect to such Loan Parties referred to in clause (a) (above) certified this Amendment as of a recent date separately agreed by the appropriate Governmental Authority of the state of formation;
Company and (ey) to the extent requested by the Administrative Agent, the Administrative Agent pursuant to Section 10 hereof. For the avoidance of doubt, it is understood and agreed that the Worldpay Closing Date Amendments shall have received all documentation not become effective until and other information, at least two Business Days prior to upon the occurrence of the Worldpay Closing Date. The Administrative Agent shall notify the Company and the Lenders of the Third Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested no less than ten Business Days prior to the Third Amendment Effective Date);
(f) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third 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 Third Amendment Effective Date);
(g) the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the Third Amendment Effective Date in accordance with the requirements of the Credit Agreement; and
(h) no Event of Default under Sections 7.01(a), (f) or (g) of the 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 the date hereof, by funding the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) such notice shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunderconclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Information Services, Inc.)
Third Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent2021 Refinancing Revolving Credit Lenders):
(a) the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and Intermediate Holdings, each Loan PartyBorrower, the Administrative Agent, the Swing Line Lender, each New Term Lender L/C Issuer and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately after giving effect to this Amendment) the Required Lenderseach 2021 Refinancing Revolving Credit Lender;
(b) 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 referred to in clause (a), 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 Lead Borrower, the Co-Borrower and each Guarantor (in each case, including by way 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 facsimile 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 Third Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the 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 5electronic transmission);
(c) to the extent requested by 2021 Incremental Second Amendment, dated as of the date hereof, among Holdings, the Borrowers, the Administrative AgentAgent and the Lenders party thereto, shall have become effective;
(d) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank received on the Third Amendment Effective Date, a customary written opinion of (i) the Hong Kong law-governed second deed of confirmatory security dated on or about the date 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) between Trinseo (Hong Kong) Limited and the Collateral Agent (the “HK Debenture Second Deed of Confirmatory Security”), (ii) the Hong Kong law governed second 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) between Trinseo Holdings Asia Pte. Ltd. and the Collateral Agent (the “HK Share Charge Second Deed of Confirmatory Security”), (iii) the Singapore law governed second composite deed of confirmatory security dated on or about the date of this Amendment (in respect (A) the Singapore law security deed dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, (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 (C) the Singapore law share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018) between Trinseo Holdings Asia Pte. Ltd., Trinseo Holding B.V. and the Collateral Agent (the “Singapore Second Composite Deed of Confirmatory Security”, and together with the HK Debenture Second Deed of Confirmatory Security and the HK Share Charge Second Deed of Confirmatory Security, collectively, the “Security Confirmations”) and (iv) the Deed of Confirmation dated as of the date hereof between Holdings, the Lead Borrower, Intermediate Holdings, Trinseo Finance Ireland Unlimited Company and the Collateral Agent;
(e) all fees and expenses required to be paid by (or on behalf of) the Borrowers to the Administrative Agent or any arranger with respect to the 2021 Refinancing Revolving Credit Loans on or before the Third 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 shall have occurred and be continuing;
(g) the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects as of the Third Amendment Effective Date and the Administrative Agent (or its counsel) shall have received a certificate dated as of the Third Amendment Effective Date signed by a Responsible Officer of the Lead Borrower certifying as to the same;
(h) the Administrative Agent shall have received a Revolving Credit Note executed by the Borrowers in favor of each 2021 Refinancing Revolving Credit Lender that has requested a Revolving Credit Note at least three (3) Business Days prior to the Third Amendment Effective Date;
(i) 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 Credit Agreement;
(j) 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, 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 dated the Third Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the by-laws, articles of association or operating, management, partnership or similar agreement of such Loan Party as in effect on the Third 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) above 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 and Irish Loan Parties), each dated a recent date prior to the Third 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;
(k) the Administrative Agent shall have received a customary opinion from (i) Ropes & G▇▇▇ LLP, 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) W▇▇▇▇▇▇ ▇▇▇▇ & , as Irish counsel for the Administrative Agent, (v) R▇▇▇▇ ▇▇▇▇▇ LLP, in its capacity as special New York German, Singapore and Hong Kong counsel for Holdingsthe Loan Parties, in each case, reasonably acceptable to the Borrower Administrative Agent and addressed to the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, 2021 Refinancing Revolving Credit Lenders dated the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;Third Amendment Effective Date; and
(dl) to the extent requested by the Administrative Agent, the Administrative Agent shall have received 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 informationreceived, at least two Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities about the Borrowers and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act (and a Beneficial Ownership Certification for any Borrower or Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been requested in each case to the extent so requested no less than ten writing at least 10 Business Days prior to the Third Amendment Effective Date);
(f) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third 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 Third Amendment Effective Date);
(g) the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the Third Amendment Effective Date in accordance with the requirements of the Credit Agreement; and
(h) no Event of Default under Sections 7.01(a), (f) or (g) of the 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 Section 5 have been satisfied on the date hereof, by the funding the New Term of 2021 Refinancing Revolving Credit Loans, the Administrative Agent and each New Term 2021 Refinancing Revolving Credit Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) Amendment shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunderhereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such 2021 Refinancing Revolving Credit Lender, as the case may be.
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Sources: Credit Agreement (Trinseo S.A.)
Third Amendment Effective Date. This Third Amendment shall become effective as of the first date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):satisfied:
(ai) the Administrative Agent shall have received a counterpart signature page of this Third Amendment duly executed by Holdingseach of the Borrower, each Guarantor, each Refinancing Term Lender and other Lenders (together with the Refinancing Term Lenders) sufficient to constitute, collectively, the Borrower Requisite Lenders;
(ii) the Administrative Agent and each Loan PartyLenders and their respective counsel shall have received an original executed copy of the favorable written opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Credit Parties, dated as of the Third Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, each New Term Lender addressed to the Administrative Agent and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately Lenders as of the Third Amendment Effective Date after giving effect to this Amendment) Third Amendment (and each Credit Party hereby instructs such counsel to deliver such opinion to the Required Administrative Agent and such Lenders);
(biii) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), 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 a copy of each Organizational Document of each Credit Party certified, to 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 extent applicable, as of a recent date by the appropriate applicable Governmental Authority 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 and/or the Second Amendment Effective Date, as applicable, remain in full force and effect and have not been amended, modified, revoked or rescinded since the Second Amendment Effective Date, (B) signature and incumbency certificates of the state officers or directors of formation each Credit Party executing this Third Amendment, substantially in the form of such Loan Partythe closing certificates delivered on the Closing Date, (iiC) certifying that attached thereto are the resolutions of the board Board of directors Directors or other comparable managing similar governing body of such Loan each Credit Party approving and, to the extent required in any jurisdiction, resolutions of the meeting of shareholders of a Credit Party, in each case authorizing the execution, delivery and performance of this Third Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Third 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 extent such concept is applicable in the relevant jurisdiction) from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation;
(iv) the representations and warranties of the Credit Parties set forth in Section 5 hereof shall be true and correct and in force and effect all material respects as of such date, (iii) certifying as to the 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 Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank on the Third Amendment Effective DateDate (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date), and the Administrative Agent shall have received a customary written opinion certificate, dated as of the Third Amendment Effective Date of the Borrower, confirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to Administrative Agent;
(iv) the Borrower shall have paid all fees and other amounts due and payable to GS Bank, ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPMS”), Citigroup Global Markets Inc. (“CGMI”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPIncorporated (“MLPFS”) as joint lead arrangers, bookrunners and co-syndication agent (in its capacity as special New York such capacities, the “Lead Arrangers”) and the Administrative Agent in connection with this Third Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arrangers or the Administrative Agent in connection with this Third Amendment, including the reasonable fees, expenses and disbursements of counsel for Holdings, the Borrower Lead Arrangers and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d) to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (in each case, to the extent that Borrower has received a reasonably detailed invoice for 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 costs and other information, at least two Business Days expenses prior to the Third Amendment Effective Date;
(vi) concurrently with the making of the Refinancing Tranche B Term Loans, required by regulatory authorities under applicable “know your customer” (a) the entire aggregate principal amount of the Existing Tranche B Term Loans and anti-money laundering rules (b) all accrued interest, fees and regulations, other amounts (including any amounts due pursuant to Section 2.18 of the PATRIOT Act (in each case to the extent so requested no less than ten Business Days Credit Agreement) accrued prior to the Third Amendment Effective Date);
(f) 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 Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the Borrower on or before the Third Amendment Effective Date in connection therewith shall have been paid (or shall substantially contemporaneously be) paid in full in cash (and or, in the case of expensesprincipal, deemed paid pursuant to the extent invoiced at least three Business Days prior to the this Third Amendment Effective Date)Amendment) in full and all Interest Periods in respect of thereof shall have been terminated;
(gvii) 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 Borrowing Request payment in respect the amount of $25,000,000 to effect the voluntary prepayment of the New Refinancing Tranche B Term Loans in accordance with Section 2.13 of the Credit Agreement immediately after giving effect to be made on 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 Third Amendment Effective Date and (ii) all notice requirements set forth in accordance Section 2.13 of the Credit Agreement with respect to such Prepayment have been satisfied (it being understood and agreed that the requirements Prepayment shall be made with internally generated cash of the Borrower and not the proceeds of the incurrence of Indebtedness).
(b) Subject to Section 9.05(b) of the Credit Agreement; and
(h) no Event , the Third Amendment Effective Date shall not occur if any of Default under Sections 7.01(a), (f) the conditions set forth or (g) referred to in this Section 6 has not been satisfied or waived in accordance with Section 10.05 of the Credit Agreement shall exist immediately at or prior to 5:00 p.m., New York City time, on February 26, 2014 (it being understood that any such failure of the Third Amendment Effective Date to occur by such date will not affect any rights or after giving effect to obligations of any Person under the effectiveness of this Amendmentexisting Credit Agreement). For purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by funding the New Term Loans, the The Administrative Agent shall promptly notify the Borrower and each New Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunderLenders of the Third Amendment Effective Date.
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