Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”): (a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent): (i) executed counterparts of this Amendment; (ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect; (iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable); (iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date; (v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing; (vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent; (vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and (viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment; (ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and (x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date; (b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation; (c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality); (d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date; (e) the Administrative Agent shall have received: (i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and (ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived). (f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date; (g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement); (h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting); (i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and (j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit The effectiveness of this Agreement contained in Section 3) shall become effective on the date on which is conditioned upon satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Datesuch date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) this Agreement duly executed counterparts by each of this Amendment;Holdings, the Borrowers, the Agent, and the Lenders.
(ii) resolutions or authorizations of each Loan Party authorizing the executionSecurity Documents (including, delivery and performance of this Amendment and, in the case of the Borrowerwithout limitation, the borrowings hereunderSecurity Agreement), and a certification of a Responsible Officer of each duly executed by the applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)[ reserved]; Reserved];
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require
(A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable an opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in house counsel to the Loan Parties Holdings and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, one or more special Georgia or local counsel to Holdings, the Borrowers, and the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and each Lender as to such matters as the Collateral AgentAgent may reasonably request;
(vii) a customary certificate, substantially in the form certificate signed by an Authorized Officer of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiariesthe Borrowers certifying (A) that the conditions specified in Section 4.02 have been satisfied, on a consolidated basis after giving effect to and (B) that the Transactionsincurrence of the Term Loans does not conflict with the Material Documents, are Solventand attaching certain schedules (the “Closing Certificate”); and
(viii) a certificatesuch other customary certificates, dated documents or consents as the Agent reasonably may require.
(b) All actions required by law or reasonably requested by the Agent to be undertaken, and all, documents and instruments, including Uniform Commercial Code financing statements and, with respect to registered, issued and applied-for Intellectual Property, IP Security Agreements, required by law or reasonably requested by the Agent to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Third Amendment Effective DateAgent, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c)or, 4(g) and 4(j) with respect to IP Security Agreements, shall have been satisfied as of executed and delivered to the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance Agent for filing with the First Lien Leverage Ratio USPTO, USCO or other IP Filing Office, as applicable.
(c) The conditions set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations 4.02 shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);satisfied.
(d) the Borrower There shall have appliedbeen no event or circumstance since January 30, concurrently with 2017 that has had or would reasonably be expected to have, either individually or in the making of the 2018 Incremental First Lien Term Loanaggregate, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;a Material Adverse Effect.
(e) All fees required to be paid to the Administrative Agent on or before the Effective Date shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested been paid in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)full.
(f) there The Borrowers shall have been paid (i) to the Administrative Agent, for the account all costs and expenses of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by set forth in Section 10.04 of 9.04(a)) incurred in connection with or relating to this Agreement and the Credit Agreementother Loan Documents, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) counsel to the ArrangersAgent, all other compensation separately agreed to be paid the extent invoiced prior to or on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on provided that such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which payment shall not be required to be prepared in compliance with Regulation S-X thereafter preclude a final settling of accounts between the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated Borrowers and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAgent).
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including The satisfaction of each of the agreements in Section 2 and the amendments following shall constitute conditions precedent to the Credit effectiveness of this Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied and each and every provision hereof (such date, date being the “Third Amendment Agreement Effective Date”):
(a) the Administrative Agent Lender shall have received counterparts of this Agreement duly executed and delivered by each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) Borrower and each Guarantor;
(b) Lender shall have received, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):Lender:
(i) a replacement Note, evidencing Revolving Loans, duly executed counterparts of this Amendmentand delivered by each Borrower;
(ii) a duly executed original replacement common stock purchase warrant issued to Lender in the form of Exhibit C hereto (the “New Warrant”),
(iii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Senior Officers of each Loan Party authorizing as Lender may require to establish the execution, delivery identities of and performance of this Amendment and, in verify the case of the Borrower, the borrowings hereunder, authority and a certification of a Responsible Officer capacity of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or Senior Officer thereof authorized to act as a certification by a Responsible Senior Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)thereof;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such evidence as Lender may reasonably require to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing verify that each Loan Party is duly organized or formed formed, validly existing, in good standing (to the extent such concept is applicable in the relevant jurisdiction) and that qualified to engage in business in such Loan Party’s jurisdiction of organization and in each foreign jurisdiction in which such Loan Party is validly existing and required to be qualified, including certified copies of such Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in good standing;
(vi) a favorable opinion of (x) Friedbusiness, Franktax clearance certificates, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenderslike, in form and substance reasonably satisfactory [***] Omitted pursuant to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance request for confidential treatment with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;SEC.
(c) the Third Amendment Effective Date Representations shall except for representations and warranties which would otherwise fail to be true and correct solely as a result of the Third Amendment Effective Date (except occurrence and continuance of the Specified Defaults, the representations and warranties herein and in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation Credit Agreement and warranty the other Loan Documents shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that (except where any Third Amendment Effective Date Representation qualified by or such representation and warranty is already subject to a “material adverse effect”materiality standard, “material adverse change” or similar term or qualification shall be in which case such representation and warranty is true and correct in all respects respects) on and as of the date hereof, as though made on such date (after giving effect except to any the extent that such qualification of materialityrepresentations and warranties relate solely to an earlier day);
(d) no Default or Event of Default (other than the Borrower Specified Defaults) shall have appliedoccurred and be continuing on the date hereof, concurrently with nor shall result from the making consummation of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;transactions contemplated herein; and
(e) no injunction, writ, restraining order or other order of any nature prohibiting, directly or indirectly, the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 consummation of the Credit Agreement, which are hereby waived).
(f) there transactions contemplated herein shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent issued and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required remain in force by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on any Governmental Authority against any Borrower or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (any Guarantor or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Sphere 3D Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become be effective on the date on which when each of the following conditions precedent shall be satisfied (the date of such dateeffectiveness, the “Third Amendment No. 1 Effective Date”):
): (a) the Administrative Agent shall have received each of the following, each of which shall be originals originals, telecopies, other electronic image scan transmission (e.g., “pdf” or facsimiles “tif” via electronic mail), subject to Section 9.06 of the Existing Credit Agreement (followed promptly by originals) unless otherwise specified, each properly executed specified or permitted by a Responsible Officer of the signing Loan Party and, in the case of clause Existing Credit Agreement: (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification duly executed by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders constituting the Required Lenders; (ii) the Second Amendment to ABL Credit Agreement, in form and substance reasonably satisfactory to the Administrative Agent Agent, duly executed by the ABL Agent, the lenders party thereto and the Collateral Loan Parties, which Second Amendment to ABL Credit Agreement shall be in full force and effect and no default or event of default shall exist under the Term Documents, or would result from the consummation of the transactions contemplated hereby; (iii) the applicable liquidation agreements with respect to the Permitted Store Closings (including, without limitation, any applicable statements of work), in form and substance reasonably satisfactory to the Agent;
, which shall be in full force and effect as of the date hereof; (viiiv) (a) an initial Approved Budget for the 13-week period commencing on June 30, 2024 which shall be in form and substance reasonably satisfactory to the Agent, which initial Approved Budget was prepared by the Company (after consultation with the Financial Consultant) and in good faith based upon reasonable assumptions for the 13-week period covered thereby; and (b) a customary certificateBorrowing Base Certificate and an ABL Borrowing Base Certificate, substantially in each dated as of the form of Exhibit J Amendment No. 1 Effective Date, relating to the Credit Agreement from the chief financial officer of Holdingsfiscal week ended on July 27, certifying that Holdings 2024 and its Subsidiaries, on a consolidated basis after giving effect in form and substance reasonably satisfactory to the Transactions, are SolventAgent; and
(viiiv) a certificatecertificate of a Responsible Officer of each Loan Party, dated as of the Third date hereof, (a) attesting to the resolutions of the Company’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which it is a party, and authorizing specific officers of such Loan Party to execute the same, (b) certifying that, for the resolutions of each Loan Party, other than the Company, no changes to the resolutions delivered in connection with Amendment No. 1 have been made, and confirmation that such resolutions authorize each Loan Party’s execution, delivery, and performance of the Loan Documents to which it is a party, (c) certifying that, since the delivery of each Loan Party’s incumbency and organizational documents in connection with Amendment No. 1, no changes have been made to such documents, and (d) attaching copies of a certificate of status with respect to such Loan Party, dated within thirty (30) days of the Amendment No. 1 Effective Date, duly executed such certificate to be issued by the appropriate officer of the jurisdiction of organization or registration of such Loan Party, which certificate shall indicate that such Loan Party is in good standing in such jurisdiction (or other similar status, as applicable); (vi) a certificate, signed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c)Borrower Representative, 4(g) and 4(j) have been satisfied dated as of the Third Amendment Effective Date date hereof (a) stating that no Default has occurred and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, is continuing or will arise after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loanthis Amendment, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) stating that the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, representations and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except warranties contained in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Loan Documents are true and correct in all material respects as of the respective such date or for the respective period, as the case may be); provided, (it being understood and agreed that any Third Amendment Effective Date Representation qualified by representation or warranty which is subject to a “material adverse effect”, “material adverse change” or similar term or qualification any materiality qualifier shall be required to be true and correct in all respects respects), (after giving effect to c) certifying any such qualification of materiality);
other factual matters as may be reasonably requested by the Agent, (d) the Borrower shall have appliedcertifying that all regulatory approvals, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation licenses and other information consents required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account delivery and performance by any Loan Party of each Lender (as defined in the Credit Agreement) with an Existing Term any Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent Document and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 enforceability of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as any Loan Document against such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Big Lots Inc)
Conditions Precedent to Effectiveness. This Amendment (including The amendment and restatement of the agreements in Section 2 and the amendments to the Credit Existing Agreement contained in Section 3) pursuant hereto shall become not be effective on until the date on which (“Effective Date”) that each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the Administrative signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lendersan omnibus certificate, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) it, from a customary certificateknowledgeable Senior Officer of each Borrower certifying that, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactionsamendment and restatement of the Existing Agreement pursuant hereto, are (i) such Borrower is Solvent; and
(viiiii) a certificate, dated as no Default or Event of Default exists; (iii) the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) representations and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio warranties set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be 9 are true and correct as of the Third Amendment Effective Date in all material respects (except in the case for those representations that are already qualified by concepts of any Third Amendment Effective Date Representation materiality or by express thresholds, which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as respects), except for representations and warranties that expressly relate to an earlier date; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(c) Agent shall have received an omnibus certificate, in form and substance reasonably satisfactory to it, executed by a duly authorized officer of each Obligor, certifying (i) that such Obligor’s Organic Documents have not been modified from the form thereof attached to the certificate delivered by such Obligor pursuant to Section 6.1(e) of the respective date or for Existing Agreement on the respective period, as the case may be); provided, that any Third Amendment Effective Closing Date Representation qualified by or subject to (a “material adverse Closing Date Certificate”), and are in full force and effect”, “material adverse change” and (ii) that the resolutions attached to such Obligor’s Closing Date Certificate are in full force and effect and have not been amended, modified or similar term or qualification shall be true revoked, and correct in constitute all respects (after giving effect resolutions adopted with respect to any such qualification of materiality);this credit facility.
(d) No material adverse change in the Borrower financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have appliedoccurred since January 31, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;2009.
(e) the Administrative Agent Borrowers shall have received:
(i) at least three Business Days paid all fees and expenses required to be paid to Agent and Lenders on or prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) Upon giving effect to the Administrative Agent, for the account payment by Borrowers of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees andand expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to Availability shall be paid on the Third Amendment Effective Date;at least $7,500,000.
(g) since April 4No action, 2018suit, there investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or Governmental Authority that in Agent’s judgment (i) could reasonably be expected to have been no a Material Adverse Effect Effect; or (as defined in ii) could reasonably be expected to materially and adversely affect the Acquisition Agreement);Obligations or the transactions contemplated hereby.
(h) the Arrangers Agent shall be reasonably satisfied that Borrowers have received (a) an audited consolidated statement of financial position, consolidated statements of income all governmental and comprehensive income, consolidated statement of changes third party consents and approvals as may be appropriate in partners’ equity connection herewith and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendertransactions contemplated hereby.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The consummation of the transactions and other effects set forth in Sections 3 and 4 of this Amendment (including the agreements in Section 2 and the amendments Agreement shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received from ▇▇▇▇▇ ▇, each Borrower and Lenders constituting the Required Lenders either (i) counterparts of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed counterparts of this Agreement.
(b) The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles a favorable written opinion (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory addressed to the Administrative Agent (and, in and the case Lenders and dated the Amendment Effectiveness Date) of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇, special counsel for ▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender ▇ and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificateBorrowers, substantially in the form of Exhibit J B. Level 3 and the Borrowers hereby request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Credit Agreement from organization, existence and good standing of each Loan Party and Finance, the chief financial officer authorization of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; andthe other transactions contemplated hereby and any other legal matters relating to the Loan Parties, the Loan Documents, the Transactions or the other transactions contemplated hereby, all in form and substance satisfactory to the Administrative Agent and its counsel.
(viiid) The Administrative Agent shall have received a certificate, dated as of the Third Amendment Effective DateEffectiveness Date and signed by the President, duly executed by a Responsible Vice President or a Financial Officer of Holdings (A) certifying that Level 3, representing and warranting that, to the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as best of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreementhis knowledge, after giving effect on a Pro Forma Basis to the incurrence Sections 3 and 4 of the 2018 Incremental First Lien Term Commitment;
this Amendment Agreement, (ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(bi) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% representations and warranties of each Loan Party set forth in the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations Loan Documents shall be true and correct as of the Third Amendment Effective Date (Effectiveness Date, except in to the case of extent that any Third Amendment Effective Date Representation which expressly representation or warranty relates to a given any earlier date or period, (in which case such representation or warranty is correct as of such earlier date); and warranty shall be true and correct in all material respects (ii) as of the respective date or for the respective periodAmendment Effectiveness Date, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower no Default shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;occurred and be continuing.
(e) the The Administrative Agent shall have received, or contemporaneously therewith shall receive, all fees and other amounts due and payable on or prior to the Amendment Effectiveness Date in connection with this Amendment Agreement and the transactions contemplated hereby, including, without limitation:
(i) at least three Business Days prior to for the Third Amendment Effective Dateaccount of each applicable payee, all documentation and other information required by regulatory authorities commitment fees under applicable “know your customer” and anti-money laundering rules and regulations, including Section 2.13 of the PATRIOT Act, Credit Agreement accrued but unpaid as is reasonably requested in writing by of the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Effectiveness Date; and;
(ii) for the account of each Lender that has delivered (as defined in the Credit Agreementincluding by telecopy) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third executed counterpart of this Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) Agreement to the Administrative AgentAgent or counsel to the Administrative Agent on or prior to the Amendment Effectiveness Date an amendment fee equal to 0.25% of the aggregate amount of such Lender's unused Commitments, Revolving Exposure and outstanding Term Loans on the date of this Amendment Agreement after giving effect to the reductions of Commitments effected pursuant to the Restated Credit Agreement; and
(iii) for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees andeach applicable payee, to the extent required by Section 10.04 invoiced, reimbursement or payment of the Credit Agreement, expenses (including reasonable all fees and out-of-pocket expenses (including, without limitation, fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers), all other compensation separately agreed required to be reimbursed or paid on by any Loan Party hereunder or under any other Loan Document or in connection herewith or therewith.
(f) The Transactions and the Third Amendment Effective Date;other transactions contemplated hereby shall not violate any applicable law, statute, rule or regulation or conflict with, or result in a default under, any material agreement of ▇▇▇▇▇ ▇, any Borrower or any of their subsidiaries. All consents and approvals necessary or advisable to be obtained from any Governmental Authority or other Person in connection with the Transactions shall have been obtained.
(g) since April 4, 2018, there A Reaffirmation Agreement substantially in form of Exhibit C hereto shall have been no Material Adverse Effect delivered by each Loan Party (as defined in and the Acquisition Required Lenders hereby approve the amendments to the Loan Documents contemplated thereby and instruct the Agent to execute the Reaffirmation Agreement);.
(h) The Collateral and Guarantee Requirement shall be satisfied, and in connection therewith the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior a completed Perfection Certificate with respect to the Third Loan Parties dated the Amendment Effective DateEffectiveness Date and signed by an executive officer or Financial Officer of Level 3, and together with all attachments contemplated thereby.
(ci) a pro forma consolidated balance sheet and related statement of income Each of the Borrower following conditions regarding Finance shall be satisfied:
(A) The Collateral Agent shall have received Finance Collateral Control Agreements in respect of one or more deposit and securities accounts maintained by Finance with, or Money Market Funds owned by Finance and held by, not more than four financial institutions satisfactory to the Collateral Agent; the aggregate amount of the cash and Money Market Funds held in such accounts or represented by such funds shall be not less than $400,000,000 as of the date Amendment Effectiveness Date; each such Finance Collateral Control Agreement with respect to deposit or securities accounts shall be in substantially the form attached as Exhibit A to the Finance Guarantee and Security Agreement or in such other form as may be reasonably agreed to by the Collateral Agent, and each such Finance Collateral Control Agreement with respect to Money Market Funds shall be in substantially the form attached as Exhibit B to the Finance Guarantee and Security Agreement or in such other form as may be reasonably agreed to by the Collateral Agent, and in each case shall have been executed by each of Finance, the consolidated applicable financial institution or Money Market Fund, as the case may be, and the Collateral Agent; and the Collateral Agent shall have received a certificate, dated the Amendment Effectiveness Date and signed by the President, a Vice President or a Financial Officer of Level 3, representing and warranting that all the cash and Money Market Funds so deposited or held by Finance are the property of Finance and were not contributed, advanced or otherwise transferred to Finance by any Person for the purpose of making such deposit or investment.
(B) Finance shall have entered into the Finance Guarantee and Security Agreement in substantially the form attached as Exhibit D hereto (collectively with the Finance Collateral Control Agreements referred to above, the "Finance Documents").
(j) The Administrative Agent shall have received an unaudited balance sheet and income statement delivered pursuant to clause (a) (or (b), if of BTE as of June 30, 2002, certified by a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred Financial Officer and demonstrating compliance as of such date with Section 6.12 and Section 6.14(h), in each case as in effect after giving effect Sections 3 and 4 of this Amendment Agreement.
(k) The Master Lease Agreement in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) form attached as Exhibit E hereto (which shall not be required in form and substance reasonably satisfactory to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(iAdministrative Agent) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated delivered by each Person party thereto. The Administrative Agent shall notify Level 3 and the Contribution shall have been made; and
(j) Lenders of the Acquisition Amendment Effectiveness Date and such notice shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers conclusive and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderbinding.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Level 3 Communications Inc)
Conditions Precedent to Effectiveness. This Amendment (including The satisfaction of each of the agreements in Section 2 and the amendments following shall constitute conditions precedent to the Credit effectiveness of this Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied and each and every provision hereof (such date, date being the “Third Amendment Agreement Effective Date”):
(a) the Administrative Agent Lender shall have received counterparts of this Agreement duly executed and delivered by each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) Borrower and each Guarantor;
(b) Lender shall have received, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):Lender:
(i) a duly executed counterparts original common stock purchase warrant issued to Lender in the form of this Amendment;Exhibit A hereto (the “First Additional Warrant”),
(ii) a duly executed original common stock purchase warrant issued to Lender in the form of Exhibit B hereto (the “Second Additional Warrant”),
(iii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Senior Officers of each Loan Party authorizing as Lender may require to establish the execution, delivery identities of and performance of this Amendment and, in verify the case of the Borrower, the borrowings hereunder, authority and a certification of a Responsible Officer capacity of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or Senior Officer thereof authorized to act as a certification by a Responsible Senior Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)thereof;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such evidence as Lender may reasonably require to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing verify that each Loan Party is duly organized or formed formed, validly existing, in good standing (to the extent such concept is applicable in the relevant jurisdiction) and that qualified to engage in business in such Loan Party’s jurisdiction of organization and in each foreign jurisdiction in which such Loan Party is validly existing and required to be qualified, including certified copies of such Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in good standing;
(vi) a favorable opinion of (x) Friedbusiness, Franktax clearance certificates, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenderslike, in form and substance reasonably satisfactory [***] Omitted pursuant to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance request for confidential treatment with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;SEC.
(c) the Third Amendment Effective Date Representations shall except for representations and warranties which would otherwise fail to be true and correct solely as a result of the Third Amendment Effective Date (except occurrence and continuance of the Specified Defaults, the representations and warranties herein and in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation Credit Agreement and warranty the other Loan Documents shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that (except where any Third Amendment Effective Date Representation qualified by or such representation and warranty is already subject to a “material adverse effect”materiality standard, “material adverse change” or similar term or qualification shall be in which case such representation and warranty is true and correct in all respects respects) on and as of the date hereof, as though made on such date (after giving effect except to any the extent that such qualification of materialityrepresentations and warranties relate solely to an earlier day);
(d) no Default or Event of Default (other than the Borrower Specified Defaults) shall have appliedoccurred and be continuing on the date hereof, concurrently with nor shall result from the making consummation of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Datetransactions contemplated herein;
(e) no injunction, writ, restraining order or other order of any nature prohibiting, directly or indirectly, the Administrative Agent consummation of the transactions contemplated herein shall have received:been issued and remain in force by any Governmental Authority against any Borrower or any Guarantor or Lender;
(if) at least three Business Days prior Borrowers shall pay concurrently with the closing of the transactions evidenced by this Agreement, all fees, costs, expenses (including all attorney’s fees and consultant fees) and taxes then payable pursuant to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, Credit Agreement (including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account Section 2.04 of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under and Section 3.05 12 of the Credit this Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there Lender shall have been no Material Adverse Effect (as defined received, in immediately available funds, the Acquisition Amendment Fee referred to in Section 11 of this Agreement);; and
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income all other documents and comprehensive income, consolidated statement of changes legal matters in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently connection with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing transactions contemplated by this Agreement shall have been consummated delivered, executed or recorded and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant in form and substance reasonably satisfactory to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Sphere 3D Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements The provisions set forth in Section 2 and the amendments to the Credit Agreement contained in Section 3) 3 hereof shall become be effective on as of the date (the "First Amendment Effective Date") on which each of the following conditions precedent shall be have been satisfied (such date, or waived in accordance with Section 12.2 of the “Third Amendment Effective Date”Credit Agreement):
(a) The Credit Parties and the Requisite Lenders shall have indicated their consent by the execution and delivery of the signature pages to the Term Agent.
(b) As of the First Amendment Effective Date, the representations and warranties contained herein and in the other Loan Documents shall be true, correct and complete in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date.
(c) As of the First Amendment Effective Date, after giving effect to this First Amendment, no event shall have occurred and be continuing that would constitute an Event of Default or a Default.
(d) The Borrowers shall have paid all fees, costs and expenses owing to counsel to each of the Agents invoiced to the Borrowers on or before the date hereof and reimbursable by the Borrowers under the terms of the Credit Agreement.
(i) CLH shall have become a Credit Party under the Credit Agreement, a Guarantor under the Guaranties, a Grantor under the Security Agreement and a Pledgor under the Pledge Agreement by executing and delivering to Administrative Agent and Term Agent a Counterpart Agreement, in substantially the form of Annex A hereto; (ii) the Agents shall have received (A) sufficient copies of each organizational document executed and delivered by CLH (including, without limitation, the operating agreement of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each CLH in form and substance reasonably satisfactory to the Administrative Agent (Agents) and, in to the case extent applicable, certified as of clause a recent date by the appropriate governmental official, each dated the First Amendment Effective Date or a recent date prior thereto; (viB) below, a signature and incumbency certificate of the Collateral Agent):
officers of such Person executing the Loan Documents to which it is a party; (i) executed counterparts of this Amendment;
(iiC) resolutions of the board of directors or authorizations similar governing body of each Loan Party CLH approving and authorizing the execution, delivery and performance of this Amendment and, in Agreement and the case other Loan Documents and the Related Transaction Document to which it is a party or by which it or its assets may be bound as of the BorrowerFirst Amendment Effective Date, certified as of the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded First Amendment Effective Date by its secretary or amended and are an assistant secretary as being in full force and effect;
effect without modification or amendment; (iiiD) either a good standing certificate from the Organization Documents applicable Governmental Authority of CLH's jurisdiction of organization and in each Loan Party jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a certification by a Responsible Officer of each Loan Party that there have been no changes recent date prior to the Organization Documents First Amendment Effective Date; and (v) such other documents as the Agents may reasonably request; (E) originally executed copies of the favorable written opinions of counsel for the Credit Parties as to such Loan Party since other matters as Agents may reasonably request, dated as of the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
Agents, (viiF) a customary certificate, substantially in the form of Exhibit J evidence satisfactory to the Credit Agreement from Agents of CLH's authorization to file UCC financing statements, (G) the chief financial officer results of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as recent search of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice all effective UCC financing statements made with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. any personal or mixed property of CLH and (New York City timeH) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information document reasonably required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)either Agent.
(f) there The Group Operating Agreement and the Leiber Holdings, LLC operating agreement shall have been paid (i) amended to provide for the Leiber Transaction, in form and substance reasonably acceptable to the Administrative AgentAgents.
(g) As permitted to be requested pursuant to Section 6.6, for the account of the Administrative Agent Credit Parties shall have supplemented Schedule 4.2 and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, Schedule 4.8 to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges in form and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) substance reasonably acceptable to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after Agents giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderLeiber Transaction.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Term Loan Agreement contained in Section 3) shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) The Borrower shall have paid all fees required to be paid on or before the Administrative Effective Date, and all reasonable expenses of the Agent to the extent invoiced prior to the Effective Date.
(b) The Agent shall have received on or before the Effective Date, each of dated the same day, the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts The Notes made by the Borrower to the order of this Amendment;the Lenders to the extent requested by any Lender pursuant to Section 2.15.
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case Certified copies of the Borrower, resolutions of the borrowings hereunderBoard of Directors (or equivalent body) of the Borrower approving this Term Loan Agreement and the Notes to be delivered by it, and a certification of a Responsible Officer its by-laws and certificate of each incorporation, together with all amendments thereto, and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Term Loan Party that Agreement and such resolutions have not been modified, rescinded or amended and are in full force and effect;Notes.
(iii) either A copy of a good standing certificate issued by the Organization Documents Secretary of each Loan Party or a certification by a Responsible Officer State of each Loan Party that there have been no changes to the Organization Documents jurisdiction of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);Borrower’s jurisdiction of incorporation.
(iv) either incumbency certificates A certificate of each the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Term Loan Party or a certification Agreement and the Notes and the other documents to be delivered by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;it hereunder.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds . ▇▇▇▇▇▇▇▇▇▇ (US) LLP▇, special Georgia counsel to Assistant General Counsel for the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificateBorrower, substantially in the form of Exhibit J D hereto and as to such other matters as any Lender through the Agent may reasonably request.
(vi) A favorable opinion of ▇▇▇▇▇ Day, special counsel for the Borrower, in form and substance satisfactory to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;Agent.
(c) The Agent shall have received on or before the Third Amendment Effective Date Representations shall be true and correct as from each party thereto a counterpart of the Third Amendment Effective Date (except in the case this Term Loan Agreement signed on behalf of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);party.
(d) the Borrower The Lenders shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days three Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on as of the date on which the following conditions precedent shall be satisfied (such date, the “Third First Amendment Effective Date”):) upon which each of the conditions specified below have been satisfied as determined in the Agent’s discretion:
(a) the Administrative a. The Agent shall have received each one or more counterparts of this Amendment, duly executed, completed and delivered by the followingAgent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) Lender and each in form and substance reasonably Loan Party;
b. The Agent shall have received evidence satisfactory to it that the Administrative Agent (and, in Loan Parties have taken all corporate action required for the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts execution and delivery of this Amendment;
(ii) resolutions or authorizations c. After giving effect hereto, the representations and warranties of each Loan Party authorizing the execution, delivery and performance of this Amendment and, contained in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) Article V of the Credit Agreement, after giving effect in this Amendment or in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on a Pro Forma Basis and as of the date hereof, except that (i) to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment extent that such representations and warranties specifically refer to an earlier date, in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations which case they shall be true and correct as of the Third Amendment Effective Date such earlier date, (except ii) in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty qualified by materiality, they shall be true and correct in all material respects as respects, (iii) for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification Credit Agreement shall be true and correct in all respects (after giving effect deemed to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior refer to the Third Amendment Effective Datemost recent statements furnished pursuant to clauses (a) and (b), all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsrespectively, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 6.01 of the Credit Agreement, which are hereby waived).
(fiv) there shall have been paid (ithe representation contained in Section 5.05(c) to the Administrative Agent, for the account of the Administrative Agent Credit Agreement shall be deemed made subject to satisfaction of the condition subsequent listed on Section 5 hereof; and (v) on the Lenders (including First Amendment Effective Date, the 2018 Incremental First Lien Lenderforegoing reference to representations and warranties of each Loan Party contained in Article V of the Credit Agreement shall be deemed to exclude Sections 5.05(c), as applicable, all fees and, to the extent required by 5.08(a) and Section 10.04 5.23 of the Credit Agreement;
d. The Agent shall have received an updated Borrowing Base Certificate dated as of the First Amendment Effective Date (with eligible asset information as of the date of the Borrowing Base Certificate most recently otherwise required to be delivered under the Credit Agreement but with information regarding the Obligations as of such date) which shall reflect that, expenses after giving effect to the funding of any Loans to be made on the First Amendment Effective Date and the use of the proceeds thereof, Availability would not be less than zero;
e. The Agent shall have received duly executed copies of all Subordinated Notes Documents, certified by a Responsible Officer of the Lead Borrower to be correct and complete, and confirmation that the Parent shall have received not less than $18,000,000 in proceeds of the Subordinated Convertible Notes;
f. The Agent shall have entered into an Intercreditor and Subordination Agreement with the Notes Collateral Agent, with respect to the Subordinated Convertible Notes on terms and conditions acceptable to the Agent in its sole discretion;
g. The Agent shall have a received and executed borrowing request from the Lead Borrower requesting that a Revolving Loan be made on the First Amendment Effective Date in an amount no less than the amount required such that, immediately after making such Revolving Loan, the Total Revolving Outstandings shall not be less than the Minimum Required Balance;
h. The Agent shall have received satisfactory evidence that the Agent (including reasonable out-of-pocket for the benefit of the Lenders) shall have a valid and perfected first priority lien and security interest in the Collateral to secure all Obligations under the Loan Documents as amended hereby, including, without limitation, results of UCC searches with respect to each Loan Party satisfactory to the Agent and Lenders;
i. No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Credit Parties, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to result in a Material Adverse Change;
j. The Agent shall have received in immediately available funds an amendment fee, for the pro rata account of each Lender, in an aggregate amount equal to $50,000, which shall be deemed fully earned on the First Amendment Effective Date and shall not be refundable under any circumstances or subjected to reduction by way of setoff or counterclaim;
k. The Borrowers shall have paid all unpaid fees, charges and disbursements of counsel) that are due counsel and payable on or before the Third Amendment Effective Date other fees, costs and (ii) to the Arrangers, all other compensation separately agreed expenses required to be paid on to the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP Agent and the Subsidiaries (as such terms are defined in Lenders under the Acquisition Credit Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after ; and
l. After giving effect to the Transactions as if the Transactions had occurred as this Amendment, no Default or Event of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing Default shall have been consummated occurred and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendercontinuing.
Appears in 1 contract
Sources: Credit Agreement (Body Central Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on as of the date on which each of the following conditions precedent shall be are satisfied (such date, the “Third Second Amendment Effective Date”):
(a) the Administrative Agent (or its counsel) shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance counterpart of this Amendment and, in the case duly executed by each of the Borrower, the borrowings hereunderGuarantor, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Required Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Administrative Agent shall have delivered any pledged stock (or equivalent) certificates evidencing 65% received $200,000 for the benefit of each Lender in accordance with its Pro Rata Share of the voting Equity InterestsCommitments (notwithstanding whether or not such Lender shall have signed this Amendment), and 100% which represents payment in full to the Lenders for the Specified Payment Events of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporationDefault;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently substantially concurrent with the making effectiveness of the 2018 Incremental First Lien Term Loanthis Amendment, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing received evidence of payment by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account Borrower of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any lossreasonable, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) ▇▇▇▇▇▇ & Bird LLP, counsel to the ArrangersAdministrative Agent, all and any other compensation separately agreed fees payable pursuant to be paid on the Third Amendment Effective Date;Loan Documents; and
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(hd) the Arrangers representations and warranties in Sections 4 and 5 hereof (including as relates to Annex A attached hereto) shall have received (a) an audited consolidated statement of financial position, consolidated statements of income be true and comprehensive income, consolidated statement of changes correct in partners’ equity all material respects on and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date hereof (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects). The Loan Parties, the Lenders and the Administrative Agent hereby acknowledge and agree that as of the consolidated balance sheet date hereof, the conditions precedent to effectiveness as set forth in this Section 3 have been satisfied and income statement delivered pursuant to clause (a) (or (b), if this Amendment is effective as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderhereof.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments shall be subject to the Credit Agreement contained in Section 3) shall become effective on prior or concurrent satisfaction of each of the following conditions precedent (the date on which the following such conditions precedent shall be satisfied (such dateare satisfied, the “Third First Amendment Effective Date”):
(a) The Borrower and the Lenders shall have duly executed and delivered this Amendment to the Administrative Agent. The Administrative Agent shall have received a fully executed copy hereof and of each of the following, each of which other document required hereunder.
(b) The Administrative Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by have received a closing certificate from a Responsible Officer of the signing Loan Party and, in Borrower certifying as to the case of clause following matters: (i) below, by no Default or Event of Default shall have occurred and be continuing on the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third after giving effect to this Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of after giving effect to this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third First Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender representations and the Lenders, warranties made by any Loan Party and Limited Recourse Pledgor herein and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on other Loan Documents to which it is a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings party shall be (A) certifying that to the conditions precedent set forth extent qualified by materiality, “Material Adverse Effect” or similar materiality qualifiers, true and correct in Sections 4(c)all respects, 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loanextent not qualified by such materiality qualifiers, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct in all material respects, in each case, on and as of the Third Amendment Effective Date date hereof, as though made on and as of such date (except in to the case of extent that any Third Amendment Effective Date Representation which such representation and warranty expressly relates to a given date or periodan earlier date, in which case such representation and warranty shall be true and correct in all material respects as of the respective date (or for the respective periodall respects, as the case may be) as of such earlier date); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);.
(dc) To the Borrower shall have appliedextent requested by any Lender, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial positiona Revolving Loan Note, consolidated statements of income and comprehensive incomein each case, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and duly executed by the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderBorrower.
Appears in 1 contract
Sources: Credit Agreement (Enfusion, Inc.)
Conditions Precedent to Effectiveness. (a) This Amendment (including Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the agreements in Section 2 and Collateral Custodian, the amendments Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):precedent:
(i) this Agreement, all other Transaction Documents and all other agreements, instruments, certificates and other documents listed on Schedule II have been duly executed counterparts of this Amendmentby, and delivered to, the parties hereto and thereto;
(ii) resolutions all up-front expenses and fees (including reasonable and documented out-of-pocket legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or authorizations of each Loan Party authorizing by the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full force and effectfull;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth representations contained in Sections 4(c)4.01, 4(g) 4.02 and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be 4.06 are true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, (except that any Third Amendment Effective Date Representation representation qualified by or subject as to a “material adverse effect”, “material adverse changemateriality” or similar term or qualification “Material Adverse Effect” shall be true and correct in all respects as so qualified) (after giving effect to any such qualification of materialityas certified by the Borrower);
(div) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have appliedobtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, concurrently with such as ▇▇▇▇▇ Bond Rating Agency, and the making Initial Lender shall have a received a copy of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay any rating letter issued in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;connection therewith; and
(evii) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, has received all documentation and other information requested by the Administrative Agent acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as is all in form and substance reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) satisfactory to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date on which each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Co-Collateral Agent):Agents:
(i) this Agreement duly executed counterparts by each of this Amendment;Holdings, the Borrowers, the Agent, the Co-Collateral Agents, and the Lenders.
(ii) resolutions the Security Documents or authorizations of each Loan Party authorizing amendments thereto or restatements thereof (including, without limitation, the execution, delivery Guarantee and performance of this Amendment andCollateral Agreement), in each case to the case of extent reasonably requested by the BorrowerAgent, each duly executed by the borrowings hereunder, and a certification of a Responsible Officer of each applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either the Organization Documents of each all other Loan Party Documents, or a certification by a Responsible Officer of each Loan Party that there have been no changes amendments thereto or restatements thereof to the Organization Documents of such extent reasonably requested by the Agent, each duly executed by the applicable Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Parties;
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in house counsel to the Loan Parties Holdings and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, of one or more special Georgia or local counsel to Holdings, the Borrowers, and the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Co-Collateral Agent, Agents and each Lender as to such matters as the 2018 Incremental First Lien Lender and the Lenders, in form and substance Agent may reasonably satisfactory to the Administrative Agent and the Collateral Agentrequest;
(vii) a customary certificatecertificate signed by an Authorized Officer of Holdings and the Borrowers certifying (A) that the conditions specified in Section 4.02 have been satisfied, substantially in the form of Exhibit J (B) to the Credit Agreement from Solvency of the chief financial officer Loan Parties, taken as a whole, as of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis the Effective Date after giving effect to the Transactionstransactions contemplated hereby, are Solvent; and
and (viiiC) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Perfection Certificate is true and correct in all material respects respects;
(viii) evidence that all insurance (including endorsements) required to be maintained pursuant to Section 6.01(c) has been obtained and is in effect;
(ix) A Borrowing Base Certificate, duly completed and executed by an Authorized Officer of Holdings, together with supporting information satisfactory to the Co-Collateral Agents in their Permitted Discretion, and dated (i) in the event the Effective Date occurs on or before the 10th Business Day of the month, as of the respective date end of the second fiscal month immediately preceding the month in which the Effective Date occurs or for (ii) in the respective periodevent the Effective Date occurs after the 10th Business Day of the month, as of the case may be); provided, that any Third Amendment end of the fiscal month immediately preceding the month in which the Effective Date Representation qualified occurs.
(x) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialitySection 6.02(a);
(xi) duly executed Credit Card Notifications, Third Party Payor Notifications and Blocked Account Agreements required pursuant to Section 6.01(m);
(xii) a duly executed agreement from each Subsidiary of Holdings which is not a Loan Party and which owns any real estate constituting a warehouse or DC that houses collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Co-Collateral Agents a rent-free or royalty-free (as applicable) license to use such real estate and Related Intellectual Property in connection with the Co-Collateral Agents’ enforcement of their remedies under the Loan Documents with respect to the Collateral, during the occurrence and continuation of an Event of Default; and
(xiii) such other customary certificates, documents or consents as the Agent and the Co-Collateral Agents reasonably may require.
(b) all actions required by law or reasonably requested by the Co-Collateral Agents to be undertaken, and all, documents and instruments, including Uniform Commercial Code financing statements and Blocked Account Agreements, required by law or reasonably requested by the Co-Collateral Agents to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent
(c) Capped Excess Availability shall be equal to or greater than $2,000,000,000.
(d) Persons having Commitments at least equal to $1,600,000,000 (exclusive of the Borrower Commitment of Bank of America) shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;become Lenders.
(e) the Administrative Agent [Reserved]
(f) The conditions set forth in Section 4.02 shall be satisfied.
(g) There shall have received:been no event or circumstance since January 29, 2011 that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) All fees required to be paid to the Agent, the Co-Collateral Agents or the Lead Arrangers on or before the Effective Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Effective Date shall have been paid in full.
(i) at least three Business Days prior to the Third Amendment Effective Date, The Borrowers shall have paid all documentation costs and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 expenses of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders Co-Collateral Agents (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by set forth in Section 10.04 of 9.04(a)) incurred in connection with or relating to this Agreement and the Credit Agreementother Loan Documents, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) counsel to the ArrangersAgent and the Co-Collateral Agents, all other compensation separately agreed to be paid the extent invoiced prior to or on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on provided that such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which payment shall not be required to be prepared in compliance with Regulation S-X thereafter preclude a final settling of accounts between the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated Borrowers and the Contribution shall have been made; andAgent and the Co-Collateral Agents).
(j) the Acquisition No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall be consummated pursuant have occurred prior to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderEffective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall will become effective on the date on which upon the following conditions precedent shall be satisfied being met (such dateunless waived in writing by all Lenders) including the receipt, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) belowwhere applicable, by the 2018 Incremental First Lien LenderAgent, each dated as for and on behalf of the Third Amendment Effective Date (orLenders, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of following documents each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;Lenders, acting reasonably:
(viia) a customary certificate, substantially in the form of Exhibit J to the Credit this Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, shall have been duly executed and delivered by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective DateBorrower;
(b) the Borrower a confirmation of each Affiliate Guarantee and Subordination Agreement shall have been duly executed and delivered any pledged stock (or equivalent) certificates evidencing 65% of by the voting Equity Interests, Trust and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporationeach Restricted Subsidiary;
(c) the Third Amendment Effective Date Representations Agent and the Lenders shall be true have received favourable legal opinions of Borrower's Counsel and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality)Lenders' Counsel;
(d) the Borrower shall have applied, concurrently with the making paid all fees and expenses then due in respect of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Datethis Agreement;
(e) the Administrative Agent no Default or Event of Default shall have received:occurred and be continuing;
(f) the representations and warranties in Article 13 and in any other Document shall be true, complete and correct on and with effect from the date of this Agreement; and
(g) the Agent and the Lenders shall have received in respect of each Harvest Party (unless otherwise specified):
(i) at least three Business Days prior a certificate of status, certificate of compliance, good standing or similar certificate issued by an appropriate Administrative Body of the jurisdiction of organization of such Person, to the Third Amendment Effective Dateextent such certificate is issued by an Administrative Body in such jurisdiction;
(ii) in respect of the Borrower, all documentation certified copies of (A) any amendments or supplements to its constating documents since February 3, 2006, (B) a certified copy of the resolutions of its board of directors authorizing the execution and other information required by regulatory authorities under applicable “know your customer” delivery of this Agreement, and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10C) business days prior any amendments or supplements to the Third Amendment Effective DateMaterial Contracts since February 3, 2006; and
(iiiii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 respect of the Credit AgreementBorrower, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account a certificate of incumbency with specimen signatures of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 individuals executing any of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) Documents to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of which the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of is a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderparty.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The parties hereto agree that this Amendment shall not be effective until the satisfaction (including or waiver by the agreements in Section 2 Administrative Agent and the amendments to the Credit Agreement contained in Section 3Existing Lenders) shall become effective on the date on which of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance copy of this Amendment andduly completed, in executed and delivered by the case of the BorrowerExisting Lenders, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing DateL/C Issuer, the New Incremental First Lien Term Commitments Effective Date and/or Swine Line Lender, the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to Borrower and the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Administrative Agent shall have delivered any pledged stock (or equivalent) certificates evidencing 65% receive evidence of concurrent consummation of a related amendment to the voting Equity InterestsParent Credit Agreement, which shall be in form and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporationsubstance reasonably acceptable to the Administrative Agent;
(c) the Third Amendment Effective Date Representations Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, which shall be true in form and correct substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to that certain Senior Secured Credit Agreement, dated as of September 28, 2023 (and as amended, restated, supplemented or otherwise modified from time to time), by and among the Third Parent, the lenders from time to time party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) each of the representations and warranties made in this Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as of the respective date to "materiality" or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification "Material Adverse Effect" shall be true and correct in all respects respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to any the amendments contemplated by this Amendment as if such qualification representations and warranties were being made on and as of materialitythe Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(ef) the Administrative Agent shall have received:received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party and such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(g) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least two (2) Business Days prior to the Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel) and (ii) all other compensation required to be paid on or prior to the Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Third Amendment Effective Date, the Lead Arrangers (as defined in the Engagement Letter) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct and a Beneficial Ownership Certification in relation to the Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, as that is reasonably requested in writing by the Administrative Agent at least ten (10) business days Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Amendment (including Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the agreements in Section 2 and Collateral Custodian, the amendments Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):precedent:
(i) this Agreement, all other Transaction Documents and all other agreements, instruments, certificates and other documents listed on Schedule II have been duly executed counterparts of this Amendmentby, and delivered to, the parties hereto and thereto;
(ii) resolutions all up-front expenses and fees (including reasonable and documented out-of-pocket legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or authorizations of each Loan Party authorizing by the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full force and effectfull;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth representations contained in Sections 4(c)4.01, 4(g) 4.02 and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be 4.06 are true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, (except that any Third Amendment Effective Date Representation representation qualified by or subject as to a “material adverse effect”, “material adverse changemateriality” or similar term or qualification “Material Adverse Effect” shall be true and correct in all respects as so qualified) (after giving effect to any such qualification of materialityas certified by the Borrower);
(div) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have appliedobtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, concurrently with such as ▇▇▇▇▇ Bond Rating Agency, and the making Initial Lender shall have a received a copy of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay any rating letter issued in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;connection therewith; and -49-
(evii) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, has received all documentation and other information requested by the Administrative Agent acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as is all in form and substance reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) satisfactory to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Conditions Precedent to Effectiveness. A. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):) when each of the following conditions shall have been satisfied:
(ai) Company, the Subsidiary Guarantors, the Administrative Agent and the Requisite Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent;
(ii) the Administrative Agent shall have received from Company and each of other Loan Party the following:
(a) an officer’s certificate certifying that no amendments, each modifications or changes have been made to (x) the Certificate or Articles of which shall be originals Incorporation or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer other appropriate organizational documents of the signing such Loan Party andand (y) the Bylaws or similar organizational documents of such Loan Party, in since such documents were previously delivered to the case Administrative Agent, together with a good standing certificate from the Secretary of clause (i) below, by the 2018 Incremental First Lien Lender, State of such Loan Party’s jurisdiction of incorporation or formation each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before prior to the Third Amendment Effective Date;
(b) and each in form and substance resolutions of the Board of Directors or similar governing body of such Loan Party (or other evidence reasonably satisfactory to the Administrative Agent (and, in the case of clause (viAgent) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Amended Credit Agreement (as defined below), certified as of the Third Amendment Effective Date by the corporate secretary, an assistant secretary or a Responsible Officer of such Loan Party as being in full force and effect without modification or amendment; and
(c) signature and incumbency certificates of the officers of such Loan Party executing this Amendment;
(iii) the representations and warranties contained in Section 5 of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty already qualified by materiality, in all respects) on and as of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Third Amendment Effective Date to the same extent as though made on and as of that date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (or, in the case of any representation or warranty already qualified by materiality, in all respects) on and as applicableof such earlier date) and as if each reference in any such representation or warranty to “this Agreement” or “the Credit Agreement” included reference to this Amendment and to the Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”);
(iv) either incumbency certificates of each Loan Party the Administrative Agent shall have received from Company an Officer’s Certificate certifying that the Sale has been consummated or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Dateshall be consummated substantially concurrently with this Amendment;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable the Administrative Agent shall have received an opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed with respect to the Administrative Agent, enforceability of the Collateral Agent, the 2018 Incremental First Lien Lender Amendment and the LendersAmended Credit Agreement and corporate authorization of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(evi) the Administrative Agent shall have received:
(i) received at least three Business Days prior to the Third Amendment Effective Date, Date all documentation and other information about the Investors (as defined in the Amended Credit Agreement) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActACT, as is reasonably that has been requested in writing by the Administrative Agent in writing at least ten (10) business days six Business Days prior to the Third Amendment Effective Date;
(vii) after giving effect to this Amendment, no Potential Event of Default or Event of Default shall have occurred and be continuing; and
(iiviii) for the account of each Lender Company shall have paid (as defined x) to Credit Suisse Securities (USA) LLC all fees set forth in the Engagement Letter, dated as of November 4, 2015, between Company and Credit AgreementSuisse Securities (USA) with an Existing Term Loan all interest accrued but unpaid on LLC within the Existing Term Loans through the Third Amendment Effective Date time periods specified therein, (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (iy) to the Administrative Agent, for the ratable account of each Lender that shall have executed this Amendment on or prior to 12:00 p.m. (New York time) on December 21, 2015, an amendment fee of (1) 5.00% of the Administrative Agent sum of the outstanding aggregate principal amount of such Lenders’ Revolving Loan Commitments and (2) 5.00% of the Lenders (including sum of the 2018 Incremental First Lien Lender)aggregate outstanding principal amount of such Lenders’ Term Loans, in each case, as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (cz) a pro forma consolidated balance sheet and related statement of income to the Administrative Agent for the account of the Borrower as of the date of the consolidated balance sheet Administrative Agent all reasonable fees, expenses and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect other amounts payable to the Transactions as if the Transactions had occurred as Administrative Agent in connection with this Amendment (including, without limitation, all reasonable legal fees and expenses of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933White & Case LLP, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant counsel to the Acquisition AgreementAdministrative Agent, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse invoice has been provided to Company prior to the Arrangers and the 2018 Incremental First Lien LenderThird Amendment Effective Date).
Appears in 1 contract
Sources: Credit Agreement (Alliance HealthCare Services, Inc)
Conditions Precedent to Effectiveness. This Amendment (a) The effectiveness of the amendments set forth in Section 1.1 of this Amendment, including the agreements in Section 2 obligation of each Refinancing Term Lender to make, and the amendments each Exchanging Lender to exchange its Existing Term Loan for, an Amendment No. 1 Refinancing Term Loan, is subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction or waiver of the following conditions precedent shall be satisfied (the date of such datesatisfaction or waiver of such conditions being referred to herein as the “Amendment No. 1 Effective Date” and the time of such satisfaction or waiver of such conditions being referred to herein as the, the “Third Amendment No. 1 Effective DateTime”):
(a1) the Borrower, the Guarantors, the Administrative Agent, the Collateral Agent and the Refinancing Term Lenders representing 100% of the Initial Term B Loan Commitments (as set forth on Schedule 1.01A to the Credit Agreement, as amended by this Amendment) have each delivered a duly executed counterpart of this Amendment to the Administrative Agent (which, in the case of Exchanging Lenders and Cash Settlement Lenders, may be in the form of an Existing Term Lender Signature Page);
(2) the Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the followingResponsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which shall be originals such Loan Party is a party, certified as of the Amendment No. 1 Effective Date by its secretary, an assistant secretary or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by 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 each Loan Party’s jurisdiction of incorporation, organization or formation;
(3) the signing Loan Party andAdministrative Agent shall have received a certificate, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (andAgent, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, Borrower dated as of the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification Amendment No. 1 Effective Date signed by a Responsible Officer of each Loan Party that there have been no changes the Borrower certifying as to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date matters set forth in clauses (as applicable)4) and (5) below;
(iv4) either incumbency certificates the representations and warranties of each Loan Party set forth in the Credit Agreement shall be true and correct in all material respects (or a certification by a Responsible Officer of each Loan Party that there have been no changes in all respects to the Responsible Officers set forth extent that any representation and warranty is qualified by materiality or Material Adverse Effect) on and as of the incumbency certificates Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect) as of such Loan Party delivered on the Second Amendment Effective Dateearlier date;
(v5) good standing certificates evidencing that each Loan Party is duly organized or formed at the time of and that each Loan Party is validly existing immediately after giving effect to this Amendment, no Default (as defined in the Amended Credit Agreement) shall have occurred and in good standingbe continuing;
(vi6) a favorable the Borrower shall have delivered to the Administrative Agent an opinion of (x) Friedfrom Skadden, FrankArps, HarrisSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment No. 1 Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e7) the Administrative Agent shall have received:
(i) , at least three (3) Business Days prior to the Third Amendment No. 1 Effective Date, all documentation and other information required with respect to the Loan Parties by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, as is to the extent reasonably requested in writing by the Administrative Agent at least ten (10) business days Business Days prior to the Third Amendment No. 1 Effective Date; and;
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of 8) the Administrative Agent shall have received, at least three (3) Business Days prior to the Amendment No. 1 Effective Date, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and to the Lenders extent reasonably requested in writing by the Administrative Agent at least ten (including 10) Business Days prior to the 2018 Incremental First Lien Lender), as applicable, Amendment No. 1 Effective Date;
(9) the Administrative Agent shall have received all fees andand other amounts due and payable by the Borrower in connection with this Amendment on or prior to the Amendment No. 1 Effective Date, including, to the extent required by Section 10.04 invoiced at least three (3) Business Days prior to the Amendment No. 1 Effective Date, reimbursement or payment of the Credit Agreement, expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be expenses required to be prepared in compliance with Regulation S-X reimbursed or paid by the Borrower pursuant to Section 9.03(a) of the Securities Act of 1933Credit Agreement (in each case, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with which amounts may be offset against the initial funding proceeds of the 2018 Incremental First Lien Amendment No. 1 Refinancing Term Loan, the Refinancing shall have been consummated and the Contribution shall have been madeLoans); and
(j10) the Acquisition shall be consummated pursuant with respect to the Acquisition AgreementAmendment No. 1 Refinancing Term Loans, substantially concurrently with the initial funding Administrative Agent shall have received a request for a Borrowing as required by Section 2.03 of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto Credit Agreement (or consents such notice shall have been deemed given in accordance with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent Section 2.03 of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Credit Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and ).
(b) neither The making of and/or exchange for Amendment No. 1 Refinancing Term Loans by the reduction Refinancing Term Lenders shall conclusively be deemed to constitute an acknowledgment by the Administrative Agent and each Refinancing Term Lender that each of the Purchase Price (as defined conditions precedent set forth herein shall have been satisfied in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded accordance with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) its respective terms or shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderhave been irrevocably waived by such Person.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied have been fulfilled or waived prior to or concurrently herewith, each to the satisfaction of the Administrative Agent (such date, date being the “Third First Amendment Effective Date”):
(a) the Administrative Agent a. The Loan Parties and each Lender shall have received executed and delivered this Amendment and each of the followingdocuments, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) instruments and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers agreements set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan PartiesSchedule 1 attached hereto, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and each Lender.
b. No Revolving Extension of Credit shall be outstanding on the Collateral Agent;Closing Date after giving effect to the deemed conversion contemplated herein.
c. All necessary board of directors and/or shareholder or other corporate consents and approvals to this Amendment (viiif any) shall have been obtained.
d. The Administrative Agent shall have received (i) a customary certificatecertificate of each Loan Party, dated the First Amendment Effective Date and executed by a Responsible Officer of such Loan Party, substantially in the form of Exhibit J C to the Credit Agreement from Agreement, with appropriate insertions and attachments, including, among others, the chief financial officer certificate of Holdingsincorporation, certifying that Holdings registration or other similar constitutional or organizational document of such Loan Party issued and/or certified by the relevant authority of the jurisdiction, incorporation, organization, formation or registration of such Loan Party (any such documents, the “Formation Documents”), the bylaws, memorandum and its Subsidiariesarticles of association, on or other similar constitutional or organizational document of each Loan Party (any such documents, the “Governing Documents”) and the relevant board and/or shareholder resolutions or written consents of such Loan Party (any such documents, the “Resolutions”), or if applicable a consolidated basis after giving effect certification of no changes to the TransactionsFormation Documents, are Solvent; and
Governing Documents and/or Resolutions, as applicable, and (viiiii) a long form good standing certificate, dated as or comparable certificate for any jurisdiction outside of the Third United States, as applicable, for each Loan Party from its jurisdiction of incorporation, organization, formation or registration; provided that this Section 4(c)(ii) shall not apply with respect to any Loan Party organized under the laws of England and Wales.
e. The Administrative Agent shall have received (i) a certificate of Guarantor (as defined in the Sponsor Guaranty), dated the First Amendment Effective Date, duly Date and executed by a Responsible Officer of Holdings Guarantor (A) certifying that as defined in the conditions precedent set forth in Sections 4(cSponsor Guaranty), 4(gin form and substance satisfactory to the Administrative Agent, with appropriate insertions and attachments, including, among others, the Formation Documents of Guarantor (as defined in the Sponsor Guaranty), the Governing Documents of Guarantor (as defined in the Sponsor Guaranty) and 4(jthe Resolutions of Guarantor (as defined in the Sponsor Guaranty), and (ii) have been satisfied as a long form good standing certificate, or comparable certificate for any jurisdiction outside of the Third United States, as applicable, for Guarantor (as defined in the Sponsor Guaranty) from its jurisdiction of incorporation, organization or formation.
f. No Default or Event of Default shall have occurred and be continuing, both before and immediately after giving effect to the execution of this Amendment.
g. The Lenders and the Administrative Agent shall have received payment from the Borrower of all the fees, costs and expenses required to be paid pursuant to Section 8 of this Amendment Effective Date (including the fees and (B) setting forth calculations in reasonable detail demonstrating compliance with expenses of legal counsel required to be paid thereunder to the First Lien Leverage Ratio extent an invoice therefor has been received by the Loan Parties).
h. The representations and warranties set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty 5 below shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)respects.
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment shall become effective as of the date hereof (including the agreements in Section 2 and other than the amendments to the Credit Agreement contained financial covenants in Section 39.15, which shall be made effective as of December 31, 2013) shall become effective on the date on which only upon satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received due execution and delivery of a counterpart signature page to this Amendment by each of the followingParent, each of which shall be originals or facsimiles Borrower, the undersigned Lenders (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of constituting Required Lenders under the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated Credit Agreement as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Datehereof) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Parent shall have delivered any pledged stock (or equivalent) certificates evidencing 65% provide its best estimate of the voting Equity InterestsAvailable Amount, as of the December 31, 2013 (it being understood that financial statements for the fiscal period ending December 31, 2013 are not available as of the date of this Amendment), and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., the calculations determining such figures in a Delaware corporationform reasonably acceptable to the Administrative Agent and certified by the Parent’s chief financial officer;
(c) the Third Amendment Effective Date Representations shall be true and correct as each of the Third Administrative Agent and the undersigned Lenders shall have received reimbursement or payment of (i) all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent invoiced on or prior to the Execution Date, and (ii) the 0.25% amendment fee to each Lender executing this Amendment Effective Date and any other fees set forth in that certain fee letter, dated January 16, 2014 among ▇▇▇▇▇ Fargo Securities, LLC, the Administrative Agent, the Parent and the Borrowers; and
(except d) the representations and warranties set forth in the case Article III of any Third this Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for Execution Date (except that the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification representation and warranty set forth in clause (g) of Article III shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waivedrespects).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied has been fulfilled to the reasonable satisfaction of the Agent (the date that such dateconditions are satisfied, the “Third Second Amendment Effective Date”):
(a) the Administrative The Agent shall have received each of the followingfollowing documents, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (andAgent, duly executed by the parties thereto and in the case of clause (vi) below, the Collateral Agent):full force and effect:
(i) executed counterparts of this Amendment, executed by the Borrower, the Guarantors, and the Lenders on, or prior to, 5:00 p.m., New York City time on August 9, 2017 (the “Consent Deadline”);
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Second Amendment Fee Letter; and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents a Note, or amended and restated Note, as applicable, in favor of each Loan Party or Lender requesting such a certification by a Responsible Officer of each Loan Party that there have been no changes Note at least three Business Days prior to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);and reflecting the Commitment of such Lender after giving effect to this Amendment.
(ivb) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there The Borrower shall have been no changes delivered to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) , a customary certificatecertificate of each Loan Party, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed signed by a Responsible Officer of Holdings the Borrower, (A) certifying that and attaching the conditions precedent set forth in Sections 4(c)resolutions adopted by such Loan Party approving or consenting to the Commitment Increase, 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment the Borrower, certifying that, before and after giving effect to such Commitment Increase, (1) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the applicable Increase Effective Date Representation Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which expressly relates to a given date or period, such representation and warranty shall be case they are true and correct in all material respects as of the respective date or for the respective periodsuch earlier date, as and in the case may be); provided, that of any Third Amendment Effective Date Representation representation and warranty qualified by or subject to a “material adverse effect”materiality, “material adverse change” or similar term or qualification they shall be true and correct in all respects respects, and except that for purposes of Section 2.15 of the Credit Agreement, the representations and warranties contained in subsections (after giving effect a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to any refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, and (2) no Default or Event of Default exists or would arise therefrom.
(c) The Agent shall have received a favorable opinion of Shearman & Sterling LLP, New York counsel to the Loan Parties, and of Dentons US LLP, local counsel to the Loan Parties, in each case, addressed to the Agent and each Lender, as to such qualification of materiality);matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan After giving effect to prepay in full the aggregate principal amount of all Existing Term (i) any Loans outstanding funded on the Third Second Amendment Effective Date;, (ii) any charges to the Loan Account made in connection with this Amendment and (iii) all Letters of Credit to be issued at, or immediately subsequent to, the Second Amendment Effective Date, Availability shall be not less than $600,000,000.
(e) the Administrative Agent After giving effect to this Amendment, no Default or Event of Default shall have received:occurred and be continuing.
(if) All reasonable Credit Party Expenses incurred by the Agent in connection with the preparation and negotiation of this Amendment and related documents (including the reasonable fees and expenses of counsel to the Agent) that have been invoiced at least three two Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Second Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to in full by the Administrative Agent, for the account Borrower in accordance with terms of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses .
(including reasonable out-of-pocket fees, charges and disbursements of counselg) All fees payable pursuant to the Second Amendment Fee Letter that are due and payable on or before the Third Second Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined paid in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of full by the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently accordance with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers terms thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The parties hereto agree that this Second Amendment (including shall not be effective until the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each a copy of the followingthis Second Amendment duly completed, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, and delivered by the 2018 Incremental First Lien Lender, each dated as of Borrower and the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Administrative Agent shall have delivered any pledged stock receive evidence of concurrent consummation of a related amendment among (or equivalenti) certificates evidencing 65% of the voting Equity InterestsTelephone and Data Systems, Inc. and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, and 100% of non-voting Equity Interests(ii) the Borrower and Toronto Dominions (Texas) LLC, of GYP Holdings IV Corp.as administrative agent, a Delaware corporationwhich shall be in form and substance reasonably acceptable to the Administrative Agent;
(c) the Third Amendment Effective Date Representations Administrative Agent shall be true have received payment of all reasonable and correct as invoiced out‑of‑pocket fees and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent in reasonable detail, and one local counsel in each relevant jurisdiction), in connection with the preparation, negotiation, execution, delivery and administration of this Second Amendment; and
(d) each of the Third representations and warranties made in this Second Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as of the respective date to "materiality" or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification "Material Adverse Effect" shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(drespects) the Borrower shall have applied, concurrently with the making on and as of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Second Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lenderas defined below), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges both before and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions amendments contemplated by this Second Amendment as if such representations and warranties were being made on and as of the Transactions had occurred Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933earlier date, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender representations and warranties contained in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that subsections (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of Section 5.05 of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) Agreement shall be deemed materially adverse to refer to the Arrangers most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the 2018 Incremental First Lien LenderCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The Revolving Loan Commitment and the amendments Term Loan Commitment shall not be effective until, and Lender shall not be required to the Credit Agreement contained in Section 3) shall become effective on fund any Loan until, the date on which that each of the following conditions precedent shall be has been satisfied as determined by Lender in its sole discretion (such date, the unless waived by Lender in its sole discretion) (“Third Amendment Effective Closing Date”):
(a) This Agreement, the Administrative Agent Revolving Loan Note, the Term Loan Note and each Security Document contemplated in Schedule 7.1 as of the Closing Date and each other Loan Document to which any Loan is a party shall be executed by the Loan Parties and delivered to Lender.
(b) Lender shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause form and substance satisfactory to Lender and its counsel:
(i) belowa certificate, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the executionAgreement, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party certifying (A) that attached copies of such certificate of formation and limited liability company agreement are true and complete, and in full force and effect, without amendment except as shown, (B) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents by such each Loan Party is true and complete, and that such resolutions have not been modified, rescinded or amended and 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 Agreement and the other Loan Documents, and (C) to the title, name and signature of each Person authorized to sign such Loan Documents;
(iiiii) either the Organization Documents of each Loan Party or a certification certificate executed by a duly authorized knowledgeable Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, Borrower certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that no Default or Event of Default exists; (B) the conditions precedent representations and warranties set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings Article IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be are true and correct in all material respects (or, to the extent any such representation or warranty is subject to a materiality qualifier or Material Adverse Effect standard, such representation or warranty is true and correct in all respects); and (C) each Loan Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents as of the respective date Closing Date;
(iii) Certificates of Good Standing or for the respective periodLegal Existence, as the case may be); provided, issued by the Secretary of State of the states of organization and qualification of each Loan Party, evidencing that each Loan Party is a limited liability company legally existing in the state of its organization and in each state where it is qualified to do business or its equivalent for any Third Amendment Effective Loan Party organized outside the United State, in form and substance acceptable to Lender;
(iv) Each document (including any UCC financing statement) required by the Security Documents or under law or reasonably requested by Lender to be filed, registered or recorded in order to create in favor of Lender a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (subject only to Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of Lender in such Collateral) shall be in proper form for filing, registration or recordation;
(v) Lender shall have received the original executed limited liability company membership interest certificates representing one hundred percent (100%) of the limited liability company membership interests in the Pledged Entities pledged pursuant to Security Documents, together with an undated transfer power for each such membership interest certificate executed in blank;
(vi) Lender shall have received evidence that all filing, recordation, subscription and inscription fees and all recording and other similar fees, and all recording, stamp and other Taxes and other expenses related to such filings, registrations and recordings necessary for and related to the transactions contemplated by this Agreement and the other Loan Document to be consummated on the Closing Date Representation qualified (to the extent the obligation to make such payment then exists) are to be paid in full by or subject on behalf of Borrower on the Closing Date;
(vii) Lender shall have received (A) results of searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the security interest of Lender in the Collateral and (B) results of tax lien, judgment and bankruptcy searches for each Loan Party in such jurisdictions and, in each case, such results shall reveal no Liens other than Permitted Liens or shall otherwise be satisfactory to Lender in its sole discretion (or the equivalent searches in each case if the jurisdiction of incorporation or formation is outside the U.S.).
(viii) copies of all instruments and agreements governing, evidencing and/or securing any and all Senior Debt and a “material adverse effect”, “material adverse change” or similar term or qualification written consent by the Senior Lender to the execution and performance by the Loan Parties of the Loan Documents executed by the Senior Lender and otherwise in form and substance acceptable to Lender;
(c) All expenses incurred by Lender prior to the Closing Date shall be true and correct in all respects (after giving effect to any such qualification of materiality);have been paid by Borrower.
(d) the Borrower shall have appliedNo Material Adverse Effect has occurred and is continuing, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan and no event or circumstance exists that could reasonably be expected to prepay result in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;a Material Adverse Effect.
(e) the Administrative Agent Borrower shall have received:
(i) at least three Business Days prior to paid the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)Fee.
(f) there Lender shall have been paid (i) to the Administrative Agentcompleted its customary business, for the account financial and legal due diligence of the Administrative Agent Borrower and the Lenders (including Approved Projects and the 2018 Incremental First Lien Lender), as applicable, transactions contemplated hereunder and the results of such due diligence shall be satisfactory to Lender in all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;respects.
(g) since April 4, 2018, there Lender shall have been no Material Adverse Effect (as defined received a legal opinion from a local counsel acceptable to Lender, in the Acquisition Agreement);form and substance acceptable to Lender.
(h) the Arrangers Lender shall have received the most recent unaudited annual financial statements (aor audited if available) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower Loan Parties, all in reasonable detail and accompanied by an unqualified report thereon by a certified public accountant reasonably acceptable to Lender which shall state that such financial statements present fairly the financial condition as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as end of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated Fiscal Year and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently results of operations and changes in financial position for such Fiscal Year of Borrower in accordance with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderGAAP.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including Agreement will be effective and enforceable in accordance with its terms upon the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):conditions:
(a1) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles copies in .pdf format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, (other than in the case of clause (1)(c)(ii) and (1)(e) below):
(a) [reserved];
(b) executed counterparts of this Agreement and the Guaranty by each intended party hereto and thereto;
(c) each Collateral Document set forth on Schedule 4.01(1)(c) required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party that is party thereto, together with:
(i) belowsubject to Section 6.13(2), by certificates, if any, representing the 2018 Incremental First Lien Lender, each dated as Pledged Collateral that is certificated equity of the Third Amendment Effective Date Loan Parties’ Material Domestic Subsidiaries accompanied by undated stock powers executed in blank; and
(or, ii) all UCC-1 financing statements in the case of certificates of governmental officialsappropriate jurisdiction or jurisdictions for each Loan Party that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been provided for, and arrangements for the filing thereof in a recent date before the Third Amendment Effective Date) and each in form and substance manner reasonably satisfactory to the Administrative Agent shall have been made (and, in it being understood that such UCC-1 financing statements will be filed on the case of clause (vi) below, the Collateral Agent):Effective Date); US-DOCS\122695800.10
(id) executed counterparts certificates of this Amendment;
(ii) resolutions or authorizations good standing from the secretary of state of the state of organization of each Loan Party authorizing (to the executionextent such concept exists in such jurisdiction), delivery and performance customary certificates of this Amendment andresolutions or other action, in the case incumbency certificates or other certificates of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer Officers of each Loan Party that such resolutions have not been modifiedcertifying true and complete copies of the Organizational Documents attached thereto and evidencing the identity, rescinded or amended authority and are in full force and effect;
(iii) either the Organization Documents capacity of each Loan Party or a certification by Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party is a party or is to be a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth party on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vie) a favorable customary legal opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ from Winston & ▇▇▇S▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(viif) a customary certificate, substantially in the form certificate of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, a Responsible Officer certifying that Holdings and its Subsidiaries, on the conditions set forth in Section 4.01(4) has been satisfied; and
(g) a consolidated basis solvency certificate from a Financial Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I; provided, are Solventhowever, that with respect to the requirements set forth in clause (1)(c)(i) above, each certificate required to be delivered pursuant to clause (1)(c)(i), above, on the Effective Date by any Loan Party will not constitute conditions precedent to the effectiveness of this Agreement on the Effective Date or the obligation of each Lender to make a Credit Extension hereunder on the Closing Date and that the only action with respect to the perfection of the Collateral that shall constitute conditions precedent to the effectiveness of this Agreement on the Effective Date shall be the delivery of the UCC-1 financing statements required pursuant to clause (1)(c)(ii), above; andprovided that the Borrower will use commercially reasonable efforts to effect the delivery of each certificate required to be delivered pursuant to clause (1)(c)(i) above (and transfer powers with respect thereto) on or prior to the Closing Date without undue burden or expense; provided further that each of the Borrower and its wholly owned Material Domestic Subsidiaries (other than Excluded Subsidiaries) will execute and/or deliver any such document(s) that is not delivered and take any perfection action that is not taken on the Effective Date or on the Closing Date within 90 days after the Closing Date (or such later date as agreed to by the Administrative Agent).
(viii2) a certificateThe Administrative Agent shall have received copies of (a) audited consolidated balance sheets and related audited consolidated statements of operations, dated as members’ equity (deficit) and cash flows of the Third Amendment Target and its subsidiaries for the fiscal years ended December 31, 2014 and December 31, 2015 and, to the extent the Target has made such financial statements available to the Borrower (or otherwise publicly available), each subsequent fiscal year ended at least 90 days prior to the Effective Date, duly executed by a Responsible Officer (b) unaudited consolidated balance sheets and the related unaudited consolidated statements of Holdings income, cash flows and members’ equity (Adeficit) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Target and its subsidiaries for each subsequent fiscal quarter (other than the fourth fiscal quarter of the Target’s fiscal year) ended at least 45 days prior to the Effective Date, (c) audited consolidated balance sheets and related audited consolidated statements of income, changes in members’ deficit and cash flows of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2014 and December 31, 2015 and each subsequent fiscal year ended at least 90 days prior to the Effective Date and (Bd) setting forth calculations in reasonable detail demonstrating compliance with unaudited consolidated balance sheets and the First Lien Leverage Ratio set forth in Section 2.12(a) related unaudited consolidated statements of income and cash flows of the Credit Agreement, after giving effect on a Pro Forma Basis Borrower and its Subsidiaries for each subsequent fiscal quarter (other than the fourth fiscal quarter of the Borrower’s fiscal year) ended at least 45 days prior to the incurrence Effective Date. For the avoidance of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans doubt, it is agreed that all Target financial statements required to be delivered pursuant to and this clause (2) shall be prepared in accordance with Section 2.03(a)(i) of the Credit Agreement; andIFRS.
(x3) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the The Administrative Agent shall have received:
(i) received at least three (3) Business Days prior to the Third Amendment Effective Date, Date all documentation and other information in respect of the Borrower and the Guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as is that has been reasonably requested in writing by it at least five (5) Business Days prior to the Effective Date.
(4) The Specified Representations shall be true and correct in all material respects on and as of the Effective Date; provided that to the extent 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.
(5) The Bridge Loan Agreement shall have been executed and delivered by the parties thereto. US-DOCS\122695800.10
(6) The Undertaking Agreement and the agreement regarding guarantee and indemnification undertakings, in each case, including all schedules and exhibits thereto, the Tender Documents and all other related documentation shall be reasonably satisfactory to the Arrangers and shall (if necessary) have been executed and delivered by the parties thereto.
(7) The Investment Agreement (including the conditions precedent set forth therein) and all of the definitive documentation related thereto shall be reasonably satisfactory to the Arrangers and shall have been executed and delivered by the parties thereto.
(8) The amendment to the Existing Credit Agreement, permitting the Transactions in a manner reasonably satisfactory to the Administrative Agent at least ten (10) business days prior to shall have been executed and delivered by the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)parties thereto.
(f9) there The Tender Documents shall have been paid (i) to the Administrative Agentbeen, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreementor, substantially concurrently with the initial funding execution of this Agreement, the Bridge Loan Agreement and the Investment Agreement, shall be submitted to the Polish Financial Supervision Authority. Without limiting the generality of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent provisions of the 2018 Incremental First Lien Lenderlast paragraph of Section 9.03, such consent not to be unreasonably withheld or delayed; provided for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) has signed this Agreement shall be deemed materially adverse to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which hereof (the “Effective Date”) provided that the following conditions precedent have been satisfied:
(1) the Parent Borrower, the Guarantors, all Continuing Lenders (constituting Required Lenders, as determined immediately prior to giving effect to this Amendment and the transactions contemplated under Article V hereof), the New Lenders and the Administrative Agent have each delivered a duly executed counterpart of this Amendment to the Administrative Agent;
(2) the Administrative Agent shall be satisfied that all conditions set forth in Subsections 6.2(a) and (such date, b) of the “Third Amendment Effective Date”):Credit Agreement are satisfied and shall have received from the Parent Borrower a certificate of a Responsible Officer of the Parent Borrower confirming the same;
(a3) the Administrative Agent shall have received each (i) a copy of the followingcertificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, by the Secretary of which shall be originals State of the state of its incorporation or facsimiles organization, and a certificate as to the good standing (followed promptly by originalswhere relevant) unless otherwise specifiedof each Loan Party as of a recent date, each properly executed by from such Secretary of State or similar Governmental Authority and (ii) a certificate of a Responsible Officer of the signing each Loan Party anddated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Effective Date, in the case (B) that attached thereto is a true and complete copy of clause (i) below, resolutions duly adopted by the 2018 Incremental First Lien Lender, each dated as board of the Third Amendment Effective Date directors (or, in the case or equivalent governing body) of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderLoan Documents to which such Person is a party, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, (iiiC) either that the Organization Documents certificate or articles of each Loan Party incorporation or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents organization of such Loan Party have not been amended since the Closing Datedate of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates and specimen signature of each officer executing any Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth Document on the incumbency certificates behalf of such Loan Party delivered on and countersigned by another officer as to the Second Amendment Effective Dateincumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (ii) above;
(v4) good standing certificates evidencing that each Loan Party is duly organized or formed the Administrative Agent shall have been paid all reasonable out of pocket costs and that each Loan Party is validly existing expenses of the Administrative Agent in connection with the preparation, negotiation and in good standing;
execution of this Amendment (vi) a favorable opinion including the reasonable fees and expenses of (x) FriedSkadden, FrankArps, HarrisSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, as counsel to the Administrative Agent);
(5) the Administrative Agent shall have received executed legal opinions covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent from each of (i) Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties Parties, and (yii) Eversheds ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (US) LLP& Finger PA, special Georgia Delaware counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii6) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding effectiveness of this Amendment, the 2018 Incremental Parent Borrower shall have entered into an amendment to its First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant Credit Agreement to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such provide for a new $500,000,000 first lien term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.loan facility;
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date on which the following conditions precedent shall be have been satisfied (such date, the “Third Amendment Effective Date”):
(a) The Company shall have paid all accrued fees and, to the extent invoiced at least two Business Days prior to the Effective Date, expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses of counsel to the Administrative Agent), in each case to the extent payable pursuant to the Engagement Letter.
(b) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are (1) with respect to representations and warranties that contain a materiality qualification in Section 4.01, true and correct and (2) with respect to all other representations and warranties, true and correct in all material respects, in each case, on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of this Amendment;The Notes to the Lenders, to the extent requested by any Lender at least three Business Days before the Effective Date.
(ii) Certified copies of (1) the resolutions of the board of directors (or authorizations equivalent governing body) of each Loan Credit Party authorizing the execution, delivery and performance of approving this Amendment Agreement and, in to the case of the Borrowerextent applicable, the borrowings hereunderother Loan Documents, and a certification of a Responsible Officer all documents evidencing other necessary corporate or other action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents, (2) the articles of incorporation or other constitutional or charter documents, as applicable, of each Loan Credit Party that such resolutions have not been modifiedand (3) the bylaws or comparable operating agreement, rescinded or amended and are in full force and effect;as applicable, of each Credit Party.
(iii) either Certificates of good standing, existence or its equivalent with respect to each Credit Party certified as of a recent date by the Organization Documents appropriate governmental authorities of the state of incorporation or organization and each Loan Party or other state in which the failure to so qualify and be in good standing would reasonably be expected to have a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);Material Adverse Effect.
(iv) either incumbency certificates A certificate of the Secretary or an Assistant Secretary of each Loan Credit Party or a certification by a Responsible Officer certifying the names and true signatures of the officers of such Credit Party authorized to sign each Loan Party that there have been no changes Document to which it is a party and the Responsible Officers set forth on the incumbency certificates of such Loan Party other documents to be delivered on the Second Amendment Effective Date;by it hereunder.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of each of (xi) FriedCravath, Frank, Harris, ▇▇▇▇▇▇▇ Swaine & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to for the Loan Credit Parties and (yii) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) Latham, Shuker, Eden & Beaudine, LLP, special Georgia Florida counsel to for the Loan Credit Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;.
(viivi) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from An officer’s certificate prepared by the chief financial officer of Holdings, certifying that Holdings the Company as to the solvency of the Company and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as effectiveness of this Agreement on the Third Amendment Effective Date, duly executed in substantially the form of Exhibit G hereto.
(vii) A certificate prepared by a Responsible Officer the chief financial officer of Holdings (A) the Company certifying that the conditions precedent set forth in Sections 4(c)Company has, 4(g) and 4(j) have been satisfied as of or substantially concurrently with the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with will have, consummated the First Lien Leverage Ratio set forth in Section 2.12(a) of senior unsecured notes offering contemplated by the Credit Agreement, after giving effect on a Pro Forma Basis Company as disclosed to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);Administrative Agent.
(d) the Borrower The Administrative Agent shall have appliedreceived pro forma Consolidated financial statements for the Company and its Subsidiaries, concurrently with the making and projections prepared by management of the 2018 Incremental First Lien Term LoanCompany, of balance sheets, income statements and cash flow statements for the proceeds of three year period following the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;.
(e) the The Administrative Agent shall have received:
received (i) at least three five Business Days (or such shorter period agreed to by the Administrative Agent in its sole discretion) for the Company and its Domestic Subsidiaries and (ii) at least fifteen Business Days (or such shorter period agreed to by the Administrative Agent in its sole discretion) for any Foreign Borrower, in each case prior to the Effective Date all documentation and other information about the Company and the other Credit Parties as has been reasonably requested in writing at least 10 Business Days prior to the Third Amendment Effective Date, all documentation Date by the Administrative Agent that it (on behalf of itself and other information the Lenders) reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Patriot Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on Since December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “no Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderEffect has occurred.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied has been fulfilled prior to or concurrently herewith, each to the satisfaction of the Administrative Agent and the Required Lenders (such date, the “Third Amendment Agreement Effective Date”):
(a) This Agreement shall have been duly executed and delivered by the Loan Parties, the Administrative Agent and the Required Lenders.
(b) All necessary consents and approvals to this Agreement shall have been obtained.
(c) The Administrative Agent shall have received updated lien searches and good standing certificates with respect to each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent.
(andd) After giving effect to this Agreement, no Default or Event of Default shall have occurred and be continuing.
(e) Immediately after giving effect to this Agreement, the representations and warranties herein and in the case Credit Agreement and the other Loan Documents shall be true and correct in all material respects on and as of clause the date hereof, as though made on such date (vi) below, except to the Collateral Agent):
extent that (i) executed counterparts such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of this Amendment;
such earlier date, or (ii) resolutions or authorizations of each Loan Party authorizing such representations and warranties are qualified by materiality in the executiontext thereof, delivery in which case they shall be true and performance correct in all respects).
(f) The Administrative Agent shall have received all amounts required to be paid pursuant to Section 7 of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;Agreement.
(iiig) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there All other documents and legal matters in connection with this Agreement shall have been no changes to the Organization Documents of such Loan Party since the Closing Datedelivered, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party executed, or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed recorded and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, shall be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)Required Lenders.
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Docusign Inc)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the Borrower, the Administrative Agent and the Required Lenders. The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly a fully executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts copy of this Amendment;.
(iib) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis Immediately after giving effect to the Transactionsthis Amendment, are Solvent; andno Default or Event of Default shall have occurred and be continuing.
(viiic) a certificateImmediately after giving effect to this Amendment, dated as of the Third Amendment Effective Daterepresentations and warranties made by each Loan Party in this Amendment, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on as amended by this Amendment and the other Loan Documents to which it is a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
party (ixi) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations that is qualified by materiality shall be true and correct as of the Third Amendment Effective Date correct, and (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or periodii) that is not qualified by materiality, such representation and warranty shall be true and correct in all material respects respects, in each case, on and as of such date as if made on and as of such date, except to the respective date or for the respective periodextent any such representation and warranty expressly relates to an earlier date, as the in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representation and warranty shall be have been true and correct in all material respects (after giving effect to any or all respects, as applicable) as of such qualification of materiality);earlier date.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) The Lenders and the Administrative Agent shall have received:
received (i) at least three Business Days prior all fees required to the Third Amendment Effective Date, all documentation be paid pursuant to Section 5 below and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) all expenses for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall invoices have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders presented (including the 2018 Incremental First Lien Lenderreasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), as applicable, all fees and, to the extent required by provided in Section 10.04 10.5 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable Agreement on or before the Third Amendment Effective Date Date. Each Lender party hereto (including SVB) and the Administrative Agent, by delivering its signature page to this Amendment, shall be deemed to have accepted or been satisfied with (iior waived) to each condition set forth in this Section 3. The Administrative Agent shall notify the Arrangers, all other compensation separately agreed to be paid on Lenders of the Third Amendment Effective Date;
(g) since April 4Date upon the occurrence thereof, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP such notice and the Subsidiaries (as effectiveness of this Amendment shall be conclusive and binding upon all of the Lenders and all of the other parties to the Loan Documents and each of their successors and assigns; provided that, failure to give any such terms are defined in notice shall not affect the Acquisition Agreement) for the fiscal year ended on December 31effectiveness, 2017validity or enforceability of this Amendment. The parties hereto hereby agree that notwithstanding any other provision hereof, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective DateDate is April 25, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender2024.
Appears in 1 contract
Sources: Credit Agreement (Accuray Inc)
Conditions Precedent to Effectiveness. This Amendment (The effectiveness of this Agreement, including without limitation, the agreements in Lenders’ consent under Section 2 12.23. to the Assumption and the amendments release of the Parent from its obligations under the Existing Credit Agreement, and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, are both subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction or waiver of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of this AmendmentAgreement executed by each of the parties hereto;
(ii) resolutions Revolving Notes, Term Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable but excluding
(a) and the Swingline Note executed by the Borrower;
(iii) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(iv) the certificate or authorizations articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party authorizing certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel Documents to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agentwhich it is a party;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated Compliance Certificate calculated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to pro forma basis for the incurrence of the 2018 Incremental First Lien Term CommitmentParent’s fiscal quarter ended September 30, 2016;
(ix) a notice of prepayment in full Disbursement Instruction Agreement effective as of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; andAgreement Date;
(x) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent under the Existing Credit Agreement or this Agreement to the extent a Committed Loan Notice reasonably detailed invoice has been delivered to the Borrower prior to the Agreement Date, including without limitation the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(xi) copies certified by a Responsible Officer of the Borrower of the material assumption and contribution agreements entered into between or among any of the Parent, the Borrower or any other Subsidiary to effect the Reorganization, including in any event (A) all such agreements effecting the contribution to the Borrower or any of its Subsidiaries of all Properties and other assets of the Parent and any of its other Subsidiaries other than assets permitted to be held by the Parent and its Subsidiaries under Section 7.15.(a) and (B) any such assumption agreements executed by the Borrower with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior Indebtedness of the Parent permitted to the Third Amendment Effective Date;exist under Section 7.15.(a)(3)(iii).
(bxii) an officer’s certificate from the chief executive officer or chief financial officer of the Borrower certifying that (A) the Borrower shall have delivered any pledged stock Reorganization has been, or will be substantially contemporaneously with the effectiveness of this Agreement, consummated, (B) no Default or equivalent) certificates evidencing 65% Event of Default exists as of the voting Equity Interestsdate the Reorganization, or will exist immediately after giving effect thereto and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(cC) the Third Amendment Effective Date Representations shall be representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party are true and correct as of the Third Amendment Effective Date in all material respects (except in the case of any Third Amendment Effective Date Representation a representation or warranty qualified by materiality, in which expressly relates to a given date or period, case such representation and or warranty shall be true and correct in all material respects as of respects) on the respective date or for the respective period, as Reorganization except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representations and warranties shall be have been true and correct in all material respects (after giving effect to any except in the case of a representation or warranty qualified by materiality, in which case such qualification representation or warranty shall have been true in all respects) on and as of materiality)such earlier date) and except for changes in factual circumstances expressly permitted hereunder;
(dxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) the Borrower and each other Loan Party shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of provided all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) information requested by the Administrative Agent shall have received:
(i) at least three Business Days prior and each Lender in order to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under comply with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loanlimitation, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderPatriot Act.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit The effectiveness of this Agreement contained in Section 3) shall become effective on the date on which is conditioned upon satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Co-Collateral Agent):Agents:
(i) this Agreement duly executed counterparts by each of this Amendment;Holdings, the Borrowers, the Agent, the Co-Collateral Agents, and the Lenders.
(ii) resolutions the Security Documents or authorizations of each Loan Party authorizing amendments thereto or restatements thereof (including, without limitation, the execution, delivery Guarantee and performance of this Amendment andCollateral Agreement), in each case to the case of extent reasonably requested by the BorrowerAgent, each duly executed by the borrowings hereunder, and a certification of a Responsible Officer of each applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either the Organization Documents of each all other Loan Party Documents, or a certification by a Responsible Officer of each Loan Party that there have been no changes amendments thereto or restatements thereof to the Organization Documents of such extent reasonably requested by the Agent, each duly executed by the applicable Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Parties;
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in house counsel to the Loan Parties Holdings and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, of one or more special Georgia or local counsel to Holdings, the Borrowers, and the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Co-Collateral Agent, Agents and each Lender as to such matters as the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Co-Collateral AgentAgents may reasonably request;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed certificate signed by a Responsible an Authorized Officer of Holdings and the Borrowers certifying (A) certifying that the conditions precedent set forth specified in Sections 4(c), 4(g) and 4(j) Section 4.02 have been satisfied satisfied, (B) to the Solvency of the Loan Parties, taken as a whole, as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Intereststransactions contemplated hereby, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(cC) that the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Perfection Certificate is true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality)respects;
(dviii) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan evidence that all insurance (including endorsements) required to prepay be maintained pursuant to Section 6.01(c) has been obtained and is in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Dateeffect;
(eix) A Borrowing Base Certificate, duly completed and executed by an Authorized Officer of Holdings, together with supporting information satisfactory to the Administrative Agent shall have received:
Co-Collateral Agents in their Permitted Discretion, and dated (i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through event the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable occurs on or before the 10th Business Day of the month, as of the end of the second fiscal month immediately preceding the month in which the Third Amendment Effective Date and occurs or (ii) to in the Arrangers, all other compensation separately agreed to be paid on event the Third Amendment Effective Date;Date occurs after the 10th Business Day of the month, as of the end of the fiscal month immediately preceding the month in which the Third Amendment Effective Date occurs.
(gx) since April 4results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreementexcept for Liens permitted by Section 6.02(a);
(hxi) the Arrangers shall have received (a) an audited consolidated statement of financial positionduly executed Credit Card Notifications, consolidated statements of income Third Party Payor Notifications and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered Blocked Account Agreements required pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accountingSection 6.01(m);
(ixii) prior toa duly executed agreement from each Subsidiary of Holdings which is not a Loan Party and which owns any real estate constituting a warehouse or DC that houses collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Co-Collateral Agents a rent-free or substantially concurrently royalty-free (as applicable) license to use such real estate and Related Intellectual Property in connection with the initial funding Co-Collateral Agents’ enforcement of their remedies under the 2018 Incremental First Lien Term LoanLoan Documents with respect to the Collateral, during the Refinancing shall have been consummated occurrence and the Contribution shall have been madecontinuation of an Event of Default; and
(jxiii) the Acquisition shall be consummated pursuant to the Acquisition Agreementsuch other customary certificates, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto documents or consents with respect thereto that are materially adverse to as the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers Agent and the 2018 Incremental First Lien Lender and Co-Collateral Agents reasonably may require.
(b) neither all actions required by law or reasonably requested by the reduction Co-Collateral Agents to be undertaken, and all, documents and instruments, including Uniform Commercial Code financing statements and Blocked Account Agreements, required by law or reasonably requested by the Co-Collateral Agents to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Purchase Price Agent
(as defined in the Acquisition Agreementc) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) Capped Excess Availability shall be deemed materially adverse equal to the Arrangers and the 2018 Incremental First Lien Lenderor greater than $1,000,000,000.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The parties hereto agree that this Amendment shall not be effective until the satisfaction (including or waiver by the agreements in Section 2 Administrative Agent and the amendments to the Credit Agreement contained in Section 3Existing Lenders) shall become effective on the date on which of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance copy of this Amendment andduly completed, in executed and delivered by the case of the BorrowerExisting Lenders, the borrowings hereunder, Borrower and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Administrative Agent shall have delivered any pledged stock (or equivalent) certificates evidencing 65% receive evidence of concurrent consummation of a related amendment to the voting Equity InterestsU.S. Cellular Senior Term Loan Facility, which shall be in form and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporationsubstance reasonably acceptable to the Administrative Agent;
(c) the Third Amendment Effective Date Representations Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the U.S. Cellular Revolving Loan Facility, which shall be true in form and correct as substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) each of the Third representations and warranties made in this Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as of the respective date to "materiality" or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification "Material Adverse Effect" shall be true and correct in all respects respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to any the amendments contemplated by this Amendment as if such qualification representations and warranties were being made on and as of materialitythe Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(ef) the Administrative Agent shall have received:received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party and such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(g) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least two (2) Business Days prior to the Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel) and (ii) all other compensation required to be paid on or prior to the Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Third Amendment Effective Date, the Lead Arrangers (as defined in the Engagement Letter) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct and a Beneficial Ownership Certification in relation to the Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, as that is reasonably requested in writing by the Administrative Agent at least ten (10) business days Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date on which eachThe Effective Date of this Agreement was conditioned upon satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Co-Collateral Agent):Agents:
(i) this Agreement duly executed counterparts by each of this Amendment;Holdings, the Borrowers, the Agent, the Co-Collateral Agents, and the Lenders.
(ii) resolutions the Security Documents or authorizations of each Loan Party authorizing amendments thereto or restatements thereof (including, without limitation, the execution, delivery Guarantee and performance of this Amendment andCollateral Agreement), in each case to the case of extent reasonably requested by the BorrowerAgent, each duly executed by the borrowings hereunder, and a certification of a Responsible Officer of each applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either the Organization Documents of each all other Loan Party Documents, or a certification by a Responsible Officer of each Loan Party that there have been no changes amendments thereto or restatements thereof to the Organization Documents of such extent reasonably requested by the Agent, each duly executed by the applicable Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Parties;
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in house counsel to the Loan Parties Holdings and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, of one or more special Georgia or local counsel to Holdings, the Borrowers, and the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Co-Collateral Agent, Agents and each Lender as to such matters as the 2018 Incremental First Lien Lender and the Lenders, in form and substance Agent may reasonably satisfactory to the Administrative Agent and the Collateral Agentrequest;
(vii) a customary certificatecertificate signed by an Authorized Officer of Holdings and the Borrowers certifying (A) that the conditions specified in Section 4.02 have been satisfied, substantially in the form of Exhibit J (B) to the Credit Agreement from Solvency of the chief financial officer Loan Parties, taken as a whole, as of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis the Effective Date after giving effect to the Transactionstransactions contemplated hereby, are Solvent; and
and (viiiC) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Perfection Certificate is true and correct in all material respects respects;
(viii) evidence that all insurance (including endorsements) required to be maintained pursuant to Section 6.01(c) has been obtained and is in effect;
(ix) A Borrowing Base Certificate, duly completed and executed by an Authorized Officer of Holdings, together with supporting information satisfactory to the Co-Collateral Agents in their Permitted Discretion, and dated (i) in the event the Effective Date occurs on or before the 10th Business Day of the month, as of the respective date end of the second fiscal month immediately preceding the month in which the Effective Date occurs or for (ii) in the respective periodevent the Effective Date occurs after the 10th Business Day of the month, as of the case may be); provided, that any Third Amendment end of the fiscal month immediately preceding the month in which the Effective Date Representation qualified occurs.
(x) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialitySection 6.02(a);
(dxi) the Borrower shall have appliedduly executed Credit Card Notifications, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan Third Party Payor Notifications and Blocked Account Agreements required pursuant to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective DateSection 6.01(m);
(exii) the Administrative Agent shall have received:
(i) at least three Business Days prior a duly executed agreement from each Subsidiary of Holdings which is not a Loan Party and which owns any real estate constituting a warehouse or DC that houses collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Third Amendment Effective Date, all documentation Co-Collateral Agents a rent-free or royalty-free (as applicable) license to use such real estate and other information required by regulatory authorities Related Intellectual Property in connection with the Co-Collateral Agents’ enforcement of their remedies under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior Loan Documents with respect to the Third Amendment Effective DateCollateral, during the occurrence and continuation of an Event of Default; and
(iixiii) for such other customary certificates, documents or consents as the account of each Lender (as defined in Agent and the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which Co-Collateral Agents reasonably may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)require.
(fb) there all actions required by law or reasonably requested by the Co-Collateral Agents to be undertaken, and all, documents and instruments, including Uniform Commercial Code financing statements and Blocked Account Agreements, required by law or reasonably requested by the Co-Collateral Agents to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been paid (i) so filed, registered or recorded to the Administrative Agent, for the account satisfaction of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;Agent
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition Capped Excess Availability shall be consummated pursuant equal to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendergreater than $2,000,000,000.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied effective (such date, the “Third Second Amendment Effective Date”):) upon the satisfaction of the following:
(ai) This Amendment shall have been duly executed and delivered by each of the Borrowers, the Administrative Agent, the Required Lenders and each Lender providing an Additional Term Loan Commitment and (ii) the Consent and Reaffirmation attached hereto shall have been duly executed and delivered by the Subsidiary Guarantors.
5.2 The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles a favorable written opinion (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory addressed to the Administrative Agent (and, in and the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery Lenders and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on dated the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties Parties, and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel covering such other matters relating to the Loan Parties, in each case dated the Third Amendment Effective DateLoan Documents or the Transactions as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinion.
5.3 The Administrative Agent shall have received (i) a certificate signed by the President, addressed a Vice President or a Financial Officer of the Borrowers certifying that, after giving effect (including giving effect on a Pro Forma Basis reasonably acceptable to the Administrative Agent) to the Amendment and the making of the Additional Term Loans, the Collateral AgentBorrowers are in compliance with (x) the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement and (y) the covenants contained in Sections 6.11, 6.12, 6.13 and 6.14 of the 2018 Incremental First Lien Lender Credit Agreement and (ii) such other documents and certificates as the LendersAdministrative Agent or its counsel may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;its counsel.
(vii) a customary certificate5.4 After giving effect to this Amendment, substantially in the form no Default or Event of Exhibit J to Default has occurred and is continuing under the Credit Agreement from or will be triggered by the chief financial officer execution, delivery or performance of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to this Amendment or the Transactions, are Solvent; and
(viii) a certificate, dated as consummation of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;transactions contemplated hereby.
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the 5.5 The Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with party hereto that provides an Existing Additional Term Loan all interest accrued but unpaid on Commitment and delivers its executed signature page to this Amendment by no later than the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to date and time specified by the Administrative Agent, for an upfront fee in an amount equal to the account amount previously disclosed to the Lenders.
5.6 The Administrative Agent shall have received payment of the Administrative Agent Agent’s and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all its affiliates’ fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including and reasonable documented out-of-pocket fees, charges expenses (including reasonable documented out-of-pocket fees and disbursements expenses of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) counsel for the fiscal year ended on December 31, 2017, (bAdministrative Agent) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance connection with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderthis Amendment.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Second Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied (such date, the “Third Second Amendment Effective Date”):
(a) the Administrative Agent shall have received when each of the followingfollowing conditions shall have been satisfied; provided that if the following conditions are not satisfied by April 5, each of which 2013, this Second Amendment shall not become effective and shall be originals of no force or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory effect with respect to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):Credit Agreement:
(i) executed counterparts the Borrower, the Administrative Agent and the Lenders constituting the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of this Amendmentfacsimile, pdf or other electronic transmission) the same to the Administrative Agent;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case all of the Borrower, the borrowings hereunder, representations and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans warranties made pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty 3 hereof shall be true and correct in all material respects on the Second Amendment Effective Date after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the respective date or for the respective period, as the case may be); provided, that any Third Second Amendment Effective Date Representation (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified by or subject as to a “material adverse effect”, materiality,” “material adverse changeMaterial Adverse Effect” or similar term or qualification language shall be true and correct in all respects (after giving effect to any on such qualification of materialityspecified date);
(diii) the Borrower shall have applied, concurrently with the making paid any reasonable and documented out-of-pocket expenses of the 2018 Incremental First Lien Term Loan, the proceeds Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the 2018 Incremental First Lien Term Loan to prepay in full Credit Agreement, including the aggregate principal amount reasonable and documented fees, charges and disbursements of all Existing Term Loans outstanding on counsel for the Third Amendment Effective Date;Administrative Agent; and
(eiv) the Administrative Agent shall have received:
(i) at least three Business Days prior to received such other documents, information or agreements regarding the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, Borrower as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)shall reasonably request.
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments The effectiveness of this Agreement shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):
(a) that the Administrative Agent shall have received each of on or before the Closing Date (unless otherwise specified) the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent: (and, in the case of clause (via) belowthis Agreement, the Collateral Agent):
Sale Agreement, the contribution agreement relating to the transfer of the equity interests of the Borrower to the Equityholder (iwhich agreements may be redacted), and the Lender Fee Letter, each duly executed and delivered by the parties thereto, shall each be in full force and effect; (b) executed counterparts true and complete copies of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case Constituent Documents of the Borrower, the borrowings hereunder, Equityholder and the Servicer as in effect on the Closing Date; (c) a certification certificate of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
the Borrower certifying (iiii) either the Organization as to its Constituent Documents as of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, (ii) as to its resolutions or other action of the New Incremental First Lien Term Commitments Effective Date and/or Equityholder acting as the Second Amendment Effective Date sole member of the Borrower approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (as applicable);
(iviii) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers its representations and warranties set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J Facility Documents to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings which it is a party are true and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated correct in all material respects as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation representations and warranty warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing as of the respective date or for Closing Date, and (v) as to the respective periodincumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party; (d) a certificate of a Responsible Officer of the Equityholder certifying (i) as to its Constituent Documents as of the Closing Date, (ii) as to its resolutions approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representations and warranties shall be true and correct in all material respects as of such earlier date), and (after giving effect iv) as to any such qualification the incumbency and specimen signature of materiality);
(d) the Borrower shall have applied, concurrently with the making each of its Responsible Officers as of the 2018 Incremental First Lien Term Loan, Closing Date authorized to execute the proceeds of the 2018 Incremental First Lien Term Loan Facility Documents to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
which it is a party; (e) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents as of the Closing Date, (ii) as to its resolutions or other action of the Equityholder acting as the sole member of the Servicer approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party; (f) financing statements or financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral granted by the Borrower, the Equityholder or any transferor prior to the Closing Date (other than the Lien created by the Original Credit Agreement); (h) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall have received:
reasonably request; (i) at least three Business Days evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Third Amendment Effective Date, all documentation Closing Date have been received; and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account reasonable and documented fees and expenses of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss▇▇▇▇▇ & ▇▇▇▇▇ LLP, cost or expense which may be due counsel to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including Lenders, in connection with the 2018 Incremental First Lien Lender)transactions contemplated hereby, as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect paid by or on behalf of the Borrower; (j) such other opinions, instruments, certificates and documents from the Borrower as defined in the Acquisition Agreement);
(h) the Arrangers Agents or any Lender shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days reasonably requested prior to the Third Amendment Effective Closing Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to ; provided that nothing in this clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) shall imply or impose a duty on the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding part of the 2018 Incremental First Lien Term Loan, without giving effect Collateral Agent to require any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderother documents.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (T. Rowe Price OHA Select Private Credit Fund)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 Articles II and the amendments to the Credit III of this Agreement contained in Section 3) shall become effective on as of the date on which (the following "Effective Date") when and only when all of the conditions precedent shall be set forth in this Section 4.01 have been satisfied (such date, the “Third Amendment Effective Date”or waived in accordance with Section 10.01):
(a1) the Administrative Agent The Debt Coordinator shall have received each of on or before the followingEffective Date, each of which shall be originals or facsimiles dated such day (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Debt Coordinator (and, unless otherwise specified) and in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Bank:
(i) executed counterparts a counterpart of this AmendmentAgreement executed by or on behalf of each Loan Party and each Bank;
(ii) [Intentionally deleted];
(iii) Foreign Collateral Documents and Non-Shared Guaranties in form and substance reasonably satisfactory to the Debt Coordinator shall have been executed and delivered by the applicable Foreign Loan Parties with respect to the Foreign Collateral and guaranties set forth in Schedule 4.01(1)(iii);
(iv) certified copies of the resolutions or authorizations of the Board of Directors of each Loan Party authorizing approving the executionTransactions and each Transaction Document to which it is or is to be a party, delivery and performance of this Amendment andall documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Transaction Document to which it is or is to be a party;
(v) a copy of a certificate of the Secretary of State of the jurisdiction of incorporation or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter of such Loan Party, and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party's charter or other organizational documents on file in such Secretary's office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation; provided that no such Secretary of State's certificate shall be required to be delivered by any applicable Loan Party that has delivered a certificate of an Authorized Officer of such Loan Party certifying that such Secretary of State's certificate has been previously delivered to the Debt Coordinator and has not been amended or otherwise modified since the time of such delivery;
(vi) [Intentionally deleted];
(vii) a certificate of each Loan Party, signed on behalf of such Loan Party by an Authorized Officer thereof, dated as of the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in clause (ix) above, (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in clause (viii) were adopted and on the Effective Date, (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth, in the case all material respects, of the Borrowerrepresentations and warranties contained in the Amendment Documents and the Credit Documents as though made on and as of the Effective Date other than any such representations or warranties that, by their terms, refer to a specific date other than the borrowings hereunderEffective Date, in which case as of such specific date and (E) the absence of any event occurring and continuing, or resulting from the consummation of the Transactions, that constitutes a certification Default;
(viii) a certificate of a Responsible Officer the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(ix) a certified copy of a list of all pending applications filed by USI and its Subsidiaries relating to intellectual property of the type described in Section 5.01(u), provided that a complete list of all such pending applications shall be delivered to the Debt Coordinator no later than 30 days following the Effective Date;
(x) evidence of insurance naming the Collateral Trustees or, with respect to the Rexair Collateral, the Rexair Collateral Agent, as additional insureds and loss payees with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Banks, including, without limitation, business interruption insurance; provided that no such evidence of insurance shall be required to be delivered if USI or Rexair, as applicable, has delivered a certificate of an Authorized Officer of USI or Rexair, as applicable, certifying that such resolutions have not evidence of insurance has been modified, rescinded or amended previously delivered to the Debt Coordinator and are that such insurance is in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vixi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, counsel for the Loan Parties, in substantially the form of Exhibit B hereto; and
(xii) such other opinions of counsel to the Loan Parties covering such matters as the Banks through the Debt Coordinator may reasonably request.
(2) The Surviving Debt shall be on terms and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel conditions satisfactory to the Banks.
(3) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan PartiesParty or any of its Subsidiaries pending or threatened before any court, Governmental Authority or arbitrator that purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transactions.
(4) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transactions shall have been obtained (without the imposition of any conditions that are not acceptable to the Banks) and shall remain in effect, and no law or regulation shall be applicable in the judgment of the Banks, in each case dated that restrains, prevents or imposes materially adverse conditions upon the Third Amendment Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(5) On the Effective Date, addressed USI shall have paid all accrued fees of the Debt Coordinator and the Banks and all accrued expenses of the Debt Coordinator (including the accrued fees and expenses of counsel to the Administrative AgentDebt Coordinator, local counsel to the Collateral Agent, the 2018 Incremental First Lien Lender Debt Coordinator and the Lenders, in form Banks and substance reasonably satisfactory the Financial Advisor) to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J extent an invoice therefor has been delivered to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) USI at least one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f6) there USI shall have been paid (i) disclosed to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable Banks on or before the Third Amendment Effective Date the terms and conditions of the Exchange Offer and any other transactions consummated in connection therewith.
(ii7) All amounts on deposit in the L/C Cash Collateral Account and all amounts in excess of $11,700,000 on deposit in the Independent L/C Cash Collateral Account immediately prior to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there Date shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior applied to the Third Amendment Effective DatePermanent Reduction of USI Bank Exposure, and (c) a pro forma consolidated balance sheet and related statement of income of any Default arising from such application under the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) Existing Agreement shall be deemed materially adverse to have been waived.
(8) The receipt by the Arrangers and Debt Coordinator, for the 2018 Incremental First Lien Lender and (b) neither the reduction Pro Rata benefit of each Bank, of an amendment fee of 0.75% of the Purchase Price outstanding Total Principal Exposure of each such Bank under all of the Bank Facilities as on the Effective Date (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender"Amendment Fee").
Appears in 1 contract
Sources: Amendment, Restatement, General Provisions and Intercreditor Agreement (Us Industries Inc /De)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments The effectiveness of this Agreement is subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (the first date of satisfaction of all such dateconditions herein, the “Third Amendment Effective Date”):
(ai) the The Administrative Agent shall have received each duly executed counterparts of this Agreement from the Borrowers, the Guarantors, the Administrative Agent, and the Required Lenders.
(ii) Each of the following, each of which Borrowers and the Guarantors shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) have confirmed and each in form and substance reasonably satisfactory acknowledged to the Administrative Agent (andand the Lenders, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts that by its execution and delivery of this Amendment;
Agreement that they do hereby confirm and acknowledge to the Administrative Agent and the Lenders, that (iia) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment andAgreement has been duly authorized by all requisite corporate action on its part; (b) the Credit Agreement and each other Loan Document to which it is a party constitute valid and legally binding agreements enforceable against it, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the case enforcement of creditors’ rights generally and by general principles of equity; (c) after giving effect to this Agreement, the representations and warranties by the Borrowers or the Guarantors as applicable, contained in the Credit Agreement, Amendment No. 4 and in the other Loan Documents, to which it is a party, are true and correct on and as of the Borrowerdate hereof in all material respects as though made as of the date hereof, except to the borrowings hereunderextent such representations and warranties are qualified by materiality, in which case they shall be true and a certification correct in all respects; (d) all of a Responsible Officer its obligations under Section 5 of each Amendment No. 4 are hereby ratified and confirmed by such Borrower or Guarantor; and (e) no Default or Event of Default (other than the Subject Defaults) shall exist under the Credit Agreement or any of the other Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;Documents after giving effect to this Agreement.
(iii) either The Borrowers shall have paid (a) all reasonable and documented fees and out-of-pocket expenses incurred by the Organization Administrative Agent incurred in connection with the Credit Agreement and the other Loan Documents (b) all reasonable and documented fees, and out-of-pocket charges and disbursements of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes ▇▇▇▇▇ ▇▇▇▇▇ LLP, US counsel to the Organization Administrative Agent (directly to such counsel if requested by the Administrative Agent), incurred in connection with the Credit Agreement and the other Loan Documents (c) all reasonable and documented fees, and out-of-pocket charges and disbursements of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris▇▇▇▇▇’▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and (directly to such counsel if requested by the Collateral Administrative Agent;
(vii) a customary certificate), substantially incurred in the form of Exhibit J to connection with the Credit Agreement from and the chief financial officer of Holdings, certifying that Holdings other Loan Documents and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have appliedall reasonable and documented fees, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangersincurred by PA Consulting Group, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined Inc. incurred in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP connection with Credit Agreement and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderLoan Documents.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments The effectiveness of this Agreement shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):conditions:
(a) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Borrower, substantially to the effect set forth in Exhibit D, dated the Effective Date.
(b) All legal matters incident to this Agreement and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Administrative Agent.
(c) The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) belowa certificate as to the good standing of each Loan Party, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before date, from the Third Amendment applicable Governmental Authority; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party, dated the Effective Date, and certifying (A) and each in form and substance reasonably that there has been no amendment to the by-laws of such Loan Party since a date satisfactory to the Administrative Agent Agent, (and, in B) that attached thereto is a true and complete copy of resolutions duly adopted by the case board of clause (vi) below, the Collateral Agent):
(i) executed counterparts directors of this Amendment;
(ii) resolutions or authorizations of each such Loan Party authorizing the execution, delivery and performance of this Amendment the Loan Documents and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, (iiiC) either that the Organization Documents articles of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents incorporation of such Loan Party have not been amended since the Closing Datedate of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates and specimen signature of each officer executing any Loan Party Document or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth any other document delivered in connection herewith on the incumbency certificates behalf of such Loan Party delivered on Party; and (iii) a certificate of another officer as to the Second Amendment Effective Date;incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(vd) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) The Administrative Agent shall have received a favorable opinion certificate, signed by a Financial Officer of (x) Friedthe Borrower, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to and confirming that (i) the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender representations and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent warranties set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Article III hereof are true and correct in all material respects as of the respective date or for the respective periodrespects, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(dii) the Borrower shall have applied, concurrently and each other Loan Party is in compliance with the making terms and provisions set forth herein and in each other Loan Document to be observed or performed by the Borrower or such Loan Party and (iii) no Default or Event of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;Default has occurred and is continuing.
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and Each Loan Document other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition than this Agreement shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers full force and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendereffect.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligations of each Tranche B Lender to fund the Tranche B Loans, shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (the first Business Day on which such dateconditions precedent are so satisfied, the “Third Amendment Effective Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement and each of the other Loan Documents requested by the Agent from the Borrower, each other Loan Party party thereto and the Agent.
(b) The Administrative Agent shall have received each of on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and (and, except for any Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts A certificate of this Amendment;
(ii) resolutions the Secretary or authorizations Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunderBorrowing under the Tranche B Facility , and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) either Certified copies of the Organization Documents certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certification by a Responsible Officer certificate as to the good standing (where such concept is applicable) of each Loan Party that there have been no changes to the Organization Documents as of a recent date, from such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date Secretary of State (as applicableor comparable entity);.
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to for the Borrower and the other Loan Parties, in each case dated as of the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Issuing Bank and each Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Collateral Agent;Loan Documents and the Transactions as the Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(viiv) a customary certificateAny Notes, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) extent requested at least three Business Day Days prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered Date by any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the Third Amendment Effective Date Representations form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form attached hereto as Exhibit H.
(e) The representations and warranties contained in Section 4.01 and in each other Loan Document are correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true correct in all respects) except where such representations and correct as of the Third Amendment Effective Date (except warranties expressly refer to an earlier date, in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation representations and warranty warranties shall be true and correct in all material respects as of the respective date or (except for the respective period, as the case may be); provided, those representations and warranties that any Third Amendment Effective Date Representation are qualified by materiality or subject to a “material adverse effect”Material Adverse Effect, “material adverse change” or similar term or qualification which shall be true and correct in all respects (after giving effect to any respects) on and as of such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the date. The Administrative Agent shall have received:received a certificate, dated the Effective Date, from a Financial Officer of the Borrower certifying compliance with this Section 3.01(e).
(f) All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and any of the Arrangers or the Tranche B Lenders or the Term Lenders and all invoiced expenses of the Agent and the Arrangers relating hereto (including those of counsel to the Agent and the Arrangers), shall have in each case been paid.
(g) After giving effect to the Transactions and the other transactions contemplated hereby, no Loan Party shall have any outstanding Indebtedness for borrowed money or preferred stock other than the Indebtedness under the Tranche B Facility and Revolving Credit Facility and any applicable Indebtedness permitted pursuant to Section 5.03(k).
(h) Since February 2, 2018, there shall not have been any event that has resulted or would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(i) No event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default or Event of Default.
(j) The Agent and the Arrangers shall have received, at least three four Business Days prior to the Third Amendment Effective Date, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act, as is reasonably to the extent requested in writing by the Administrative Agent at least ten (10) business days Business Days prior to the Third Amendment Effective Date; andDate by the Agent or the Arrangers,.
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.01(c) and the applicable provisions of the Security and Guarantee Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Agent.
(l) The Collateral Agent shall have received (i) a Perfection Certificate with respect to the Loan Parties dated the Effective Date and duly executed by a Responsible Officer of the Borrower and (ii) the results of a recent lien search made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, as applicable, in each case as indicated on the Perfection Certificate referred to above, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 5.03(a) of this Agreement or have been or will be contemporaneously released or terminated.
(m) The Security and Guarantee Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Effective Date. The Collateral Agent, on behalf of the Secured Parties, shall have a security interest in the Collateral of the type and priority described in each Security and Guarantee Document.
(n) Each document (including any UCC financing statements but excluding any Mortgages) required by the Security and Guarantee Documents or under applicable law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the account benefit of each Lender the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other person (subject to applicable Liens permitted under Section 5.03(a) of this Agreement), shall have been filed, registered or recorded or delivered to the Collateral Agent in proper form for filing, registration or recordation. On or prior to the Effective Date, the Collateral Agent shall have received all Pledged Collateral (as defined in the Credit Guarantee and Collateral Agreement) with an Existing Term Loan all interest accrued but unpaid on required to be delivered to the Existing Term Loans through Collateral Agent pursuant to the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Guarantee and Collateral Agreement, which are hereby waived)together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as the Collateral Agent may reasonably request.
(fo) there Other than as set forth in Section 5.01(n), (i) each of the Security and Guarantee Documents, in form and substance reasonably satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been paid duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 5.03(a) of this Agreement, (iii) each such Security and Guarantee Document shall have been filed and recorded in the recording office as specified on Schedule 4.01(bb) (or a lender’s title insurance policy, in form and substance reasonably acceptable to the Collateral Agent, insuring such Security and Guarantee Document as a first lien on such Mortgaged Property (subject to applicable Liens permitted under Section 5.03(a) of this Agreement) shall have been received by the Collateral Agent) and, in connection therewith, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing and recordation and (iv) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than Permitted Liens, together with such surveys, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders.
(p) The Collateral Agent shall have received: (i) with respect to any Existing Mortgage, evidence that an amendment, supplement or modification in form reasonably satisfactory to the Collateral Agent (the “Mortgage Amendments”) with respect to each such Existing Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing and recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to maintain or protect the lien of the related Existing Mortgage and the priority thereof, (ii) with respect to the real properties subject to the Mortgage Amendments, fully paid title searches and mortgage modification and continuation endorsements confirming ownership of the related real property by the applicable Loan Party and showing no Liens of record other than Permitted Liens and (iii) evidence that all filing, documentary, stamp, intangible and recording taxes and fees in respect to such Mortgage Amendments have been paid in connection with the preparation, execution, filing and recordation of the Mortgage Amendments.
(q) With respect to each Mortgaged Property, the Administrative AgentAgent shall have received a Flood Hazard Determination and, if any Mortgaged Property is a Flood Hazard Property, (i) the Borrower's written acknowledgment of receipt of written notification from the Administrative Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the NFIP and (ii) copies of the Borrower’s application for the account a Flood Insurance Policy plus proof of premium payment, a declaration page confirming that a Flood Insurance Policy has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent and naming the Lenders (including Collateral Agent as sole loss payee. Without limiting the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 generality of the Credit Agreementprovisions of Section 8.03, expenses (including reasonable out-of-pocket feesfor purposes of determining compliance with the conditions specified in this Section 3.01, charges and disbursements each Lender as of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) shall be deemed to the Arrangershave consented to, all other compensation separately agreed approved or accepted or to be paid on satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as written notice from such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days Lender prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments Date specifying its objection thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Conditions Precedent to Effectiveness. This Amendment (including The effectiveness of the agreements in Section 2 amendment and restatement of the amendments Existing Credit Agreement is subject to the Credit Agreement contained in satisfaction (or waiver pursuant to Section 310.01) shall become effective on the date on which of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles e-mailed copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender), each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) ), and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of this AmendmentAgreement;
(ii) resolutions or authorizations Notes executed by the Borrowers in favor of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectLender requesting Notes;
(iii) either the Organization Documents certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party or a certification by evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)is a party;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates documents and certifications evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standingstanding and qualified to engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to July 31, 2019, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect; and
(vi) a favorable opinion opinions of (xi) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Esq., Senior Vice President, Chief Legal Officer and Secretary of the Company and (ii) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia New York counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;.
(b) All accrued and invoiced fees and expenses of the Borrower Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;been paid.
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) Upon the reasonable request of any Lender made at least three 10 Business Days prior to the Third Amendment Effective Date, all the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation, the PATRIOT ActAct and the AML Legislation, as is reasonably requested in writing by the Administrative Agent each case at least ten (10) business days 5 Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) at least 10 Business Days prior to the ArrangersEffective Date, all other compensation separately agreed any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, at least 5 Business Days prior to the Effective Date, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be paid on satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as notice from such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days Lender prior to the Third Amendment proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Company and the Lenders of the occurrence of the Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition notice shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers conclusive and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderbinding.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligation of each Incremental Term-1 Loan Lender to make its portion of the Incremental Term-1 Loan shall be subject to the Credit Agreement contained in Section 3) shall become effective on satisfaction of each of the following conditions precedent (the date on which the following all such conditions precedent shall be satisfied (such dateare satisfied, the “Third Second Amendment Effective Date”):
(a) the The Administrative Agent shall have received counterparts of this Agreement duly executed, as applicable, by each of the followingLoan Parties, the Incremental Term-1 Loan Lenders, the Required Lenders and the Administrative Agent.
(b) No Default or Event of Default shall exist as of the Second Amendment Effective Date before or after giving effect to the making of the Incremental Term-1 Loan.
(c) Anixter shall deliver to the Administrative Agent a certificate of each Loan Party dated as of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed the Second Amendment Effective Date signed by a Responsible Officer of the signing such Loan Party and(i) certifying and attaching the resolutions adopted by such Loan Party, approving or consenting to such Incremental Term-1 Loan Commitment, and (ii) in the case of clause Anixter, certifying that, both before and after giving effect to such Incremental Term-1 Loan Commitment, (iA) below, by the 2018 Incremental First Lien Lender, each dated representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes except to the Responsible Officers set forth on the incumbency certificates of extent that such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed representations and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel warranties specifically refer to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Partiesan earlier date, in each which case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, they are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of such earlier date, and except that for purposes of this clause (c), the Third representations and warranties contained in subsections (a) and (b) of Section 5.07 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement), and (B) no Default or Event of Default exists as of such Second Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date before or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification Incremental Term-1 Loan Commitment and the making of materiality);any Incremental Term-1 Loan pursuant thereto.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the The Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing received a duly executed Incremental Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering Note (as defined in the Amended Credit Agreement) and/or for each Incremental Term-1 Loan Lender that has requested an Incremental Term Loan Note.
(e) The Administrative Agent and the proceeds Arranger shall have been paid or reimbursed for all fees and out-of-pocket charges and other expenses incurred in connection with this Agreement, including, without limitation, the reasonable fees and disbursements of amounts borrowed under counsel for the ABL FacilityAdministrative Agent.
(f) The Borrower shall be deemed materially adverse have paid to the Arrangers Arranger, for the account of each Incremental Term- Loan Lender and Consenting Lender, as applicable, such fees as shall have been separately agreed upon in writing in the 2018 Incremental First Lien Lenderamounts and at the times so specified.
Appears in 1 contract
Sources: Incremental Facility Agreement (Anixter International Inc)
Conditions Precedent to Effectiveness. This Amendment Agreement shall become effective on and as of the first date (including the agreements in Section 2 “Effective Date”) on which the Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the amendments to the Credit Agreement contained in following additional conditions precedent shall have been satisfied, except that Section 32.04(a) shall become effective on as of the first date on which the following conditions precedent Agent shall be satisfied (such date, have received counterparts of this Agreement duly executed by the “Third Amendment Effective Date”):Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received each of on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and (and, except for the Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Bank:
(i) executed counterparts The Notes to the order of this Amendment;the Banks to the extent requested by any Bank pursuant to Section 2.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions or authorizations of the Governing Body of each Relevant Party approving each Loan Party authorizing Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the executionSecretary of State of the jurisdiction of incorporation of each Relevant Party, delivery dated reasonably near the Effective Date certifying (A) as to a true and performance correct copy of this Amendment andthe charter or other formation document, in as the case may be, of such Relevant Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Relevant Party’s charter on file in such Secretary’s office, (2) such Relevant Party has paid all franchise taxes to the date of such certificate and (3) such Relevant Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of the Borrower signed on behalf of the Borrower by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the formation document of the Borrower since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the limited liability company agreement of the Borrower as in effect on the date on which the resolutions referred to in Section 3.01(b)(iii) were adopted and on the Effective Date, (C) the due organization and good standing or valid existence of the Borrower as a limited liability company organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of the Borrower, (D) the borrowings hereunder, truth of the representations and a certification warranties contained in the Loan Documents as though made on and as of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or and (E) the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates absence of each Loan Party any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a certification by a Responsible Officer Default or Event of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;Default.
(vi) A certificate of each other Relevant Party signed on behalf of such other Relevant Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Relevant Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Relevant Party as in effect on the date on which the resolutions referred to in Section 3.01(b)(iii) were adopted and on the Effective Date, and (C) the due organization and good standing or valid existence of such Relevant Party as a corporation, limited liability company or limited partnership organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Relevant Party.
(vii) A certificate of the Secretary or an Assistant Secretary of each Relevant Party certifying the names and true signatures of the officers of such Relevant Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered by the Relevant Parties hereunder.
(viii) A certificate of the President or Vice President of the Borrower certifying working capital of the Borrower and the Subsidiaries of the Borrower as of November 30, 2005 pursuant to the GWC Contracts.
(ix) A favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇, Senior Vice President-Legal of the Borrower, in substantially the form of Exhibit C-1 hereto.
(x) A favorable opinion of ▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇. ▇▇▇▇▇▇▇▇▇, Assistant Secretary and Assistant General Counsel of the Parent, in substantially the form of Exhibit C-2 hereto.
(xi) A favorable opinion of ▇▇▇▇▇ (US) ▇▇▇▇▇, LLP, special Georgia counsel to for the Loan PartiesBorrower, in each case dated substantially the Third Amendment Effective Dateform of Exhibit C-3 hereto.
(xii) A favorable opinion of Shearman & Sterling LLP, addressed to counsel for the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;.
(viixiii) a customary certificate, substantially in A certificate of the form President or Vice President of Exhibit J the Borrower certifying that not less than $300,000,000 of intercompany payable owed by the Borrower to HESI has been capitalized.
(c) The Borrower shall have delivered to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect Agent (i) evidence satisfactory to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings Agent that (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as maturity date of the Third Amendment Effective Date Intercompany Note shall be on a date on or after December 31, 2010 and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to Parent and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% completed the capitalization of the voting Equity Interests, and 100% Intercompany Note of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
an amount not less than $300,000,000; (cii) the Third Amendment Effective Date Representations shall be true Subordination Agreement duly executed by the Parent, HESI, the Borrower and correct as of the Third Amendment Effective Date Agent and (except in iii) the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation Indemnity Agreement duly executed by the Parent and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);Agent.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation All accrued fees and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges expenses of the Co-Lead Arrangers (including the reasonable fees and disbursements expenses of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) counsel to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(gCo-Lead Arrangers for which invoices have been submitted) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);paid.
(he) the Arrangers The Borrower shall have received (a) an audited consolidated statement of financial position, consolidated statements of income paid all accrued fees and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income reasonable out-of-pocket expenses of the Borrower as Agent (including reasonable fees and expenses of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) counsel for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall invoices have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendersubmitted).
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall will become effective on the date on which upon the following conditions precedent shall be satisfied being met (such dateunless waived in writing by all Lenders) including the receipt, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) belowwhere applicable, by the 2018 Incremental First Lien LenderAgent, each dated as for and on behalf of the Third Amendment Effective Date (orLenders, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of following documents each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;Lenders, acting reasonably:
(viia) a customary certificate, substantially in the form of Exhibit J to the Credit this Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, shall have been duly executed and delivered by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective DateBorrower;
(b) the Borrower Agent and the Lenders shall have delivered any pledged stock received favourable legal opinions of Borrower's Counsel and Lenders' Counsel in respect of each Harvest Party (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., other than a Delaware corporationJV Partnership);
(c) the Third Amendment Effective Date Representations Borrower shall be true have paid all fees and correct as expenses then due in respect of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality)this Agreement;
(d) the Borrower no Default or Event of Default shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Dateoccurred and be continuing;
(e) the Administrative representations and warranties in Article 13 and in any other Document shall be true, complete and correct on and with effect from the date of this Agreement; and
(f) the Agent and the Lenders shall have received:received in respect of each Harvest Party (unless otherwise specified):
(i) at least three Business Days prior a certificate of status, certificate of compliance, good standing or similar certificate issued by an appropriate Administrative Body of the jurisdiction of organization of such Person, to the Third Amendment Effective Date, all documentation and other information required extent such certificate is issued by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including an Administrative Body in such jurisdiction;
(ii) a certified copy of each of the PATRIOT Act, as is reasonably requested in writing Material Contracts entered into by the Administrative Agent at least ten (10) business days prior a Harvest Party with respect to the Third Amendment Effective DateDeep Basin Partnership or the Midstream Partnership; together with any amendments or supplements to the other Material Contracts since April 30, 2010;
(iii) in respect of the Borrower, a certificate of incumbency with specimen signatures of the individuals executing any of the Documents to which the Borrower is a party; and
(iiiv) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income respect of the Borrower as and each Restricted Subsidiary (other than a JV Partnership) a certificate from an officer of such Subsidiary attaching certified copies of (A) its constating documents and (B) resolutions of its governing body authorizing the execution and delivery of the date of the consolidated balance sheet and income statement delivered pursuant Documents to clause (a) (or (b), if as of which it is a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderparty.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The parties hereto agree that this Amendment shall not be effective until the satisfaction (including or waiver by the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3Lender) shall become effective on the date on which of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent Lender shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts a copy of this AmendmentAmendment duly completed, executed and delivered by the Borrower and the other Loan Parties;
(ii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party authorizing as the executionLender may reasonably require evidencing the identity, delivery authority and performance capacity of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Documents to which such Loan Party that such resolutions have not been modified, rescinded is a party or amended and are in full force and effect;is to be a party; and
(iii) either such other certificates or documents as the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Datemay require;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% each of the voting Equity Interests, representations and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third warranties made in this Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse changemateriality” or similar term or qualification “Material Adverse Effect” shall be true and correct in all respects respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to any the amendments contemplated by this Amendment as if such qualification representations and warranties were being made on and as of materialitythe Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(c) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing; and
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least three two (2) Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable and documented out-of-pocket fees, disbursements and other charges and disbursements of one firm of outside counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed required to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days or prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of Date pursuant to any fee letter entered into between the Borrower as of and the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (Lender in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently connection with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendertransactions contemplated by this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on as of the date on which when each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):is satisfied:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each each, if applicable, properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date date hereof (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Datedate hereof) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and each of the case of clause (vi) below, the Collateral Agent):Lenders:
(i1) executed counterparts to this Amendment from the Borrower and each of this Amendmentthe Lenders;
(ii2) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the date hereof;
(3) (A) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer of each Loan Party dated the date hereof and certifying (I) to the effect that (w), other than with respect to Borrower and OmniGen Research, LLC (“OmniGen”), such Loan Party’s certificate or articles of incorporation or formation, by-laws or limited liability company agreement (or other equivalent organizational documents), as applicable, have not been amended since the Closing Date and are in full force and effect on the date hereof, (x), with respect to Borrower and OmniGen, attached thereto are true and complete copies of the certificate or articles of incorporation or formation (certified as of a recent date by the Secretary of State of the state of its organization and that such certificate or articles are in full force and effect), by-laws or limited liability company agreement, as applicable, of such Loan Party and that such certificate or articles of incorporation or formation, by-laws or limited liability company agreement are in full force and effect on the date hereof, and (y) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or authorizations member, as the case may be, of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderLoan Documents to which such Loan Party is a party, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, and (iiiII) either as to the Organization Documents incumbency and specimen signature of each officer executing the Amendment or any other Loan Document in connection therewith on behalf of any Loan Party or a certification and signed by a another officer as to the incumbency and specimen signature of the Responsible Officer of each Loan Party that there have been no changes executing the certificate pursuant to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date this clause (as applicableB);
(iv4) either incumbency certificates a certificate signed by the chief executive officer and the chief financial officer of each Loan Party or a certification by a Responsible Officer the Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of each Loan Party the Credit Agreement have been satisfied and (B) that there have has been no changes event or circumstance since the date of the latest balance sheet furnished pursuant to Section 6.01 of the Responsible Officers set forth on Credit Agreement that has had or would be reasonably expected to have, either individually or in the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Dateaggregate, a Material Adverse Effect;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi5) a favorable opinion of (x) Fried, Frank, Harris, ▇Golenbock E▇▇▇▇▇▇ & A▇▇▇▇ B▇▇▇ & P▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender Agent and the Lenderseach Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii6) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Encumbrances);
(7) a customary certificatecompleted “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination for each real property encumbered by a Mortgage and if such real property is located in a special flood hazard area, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viiii) a certificate, dated as of the Third Amendment Effective Date, notice about special flood hazard area status and flood disaster assistance duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) Borrower and 4(j) have been satisfied as of the Third Amendment Effective Date applicable Loan Party and (Bii) setting forth calculations in reasonable detail demonstrating compliance with certificates of insurance evidencing the First Lien Leverage Ratio set forth in flood insurance required to be maintained under Section 2.12(a6.07(b) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix8) with respect to each Mortgage, an amendment thereof (each a “Mortgage Amendment”) a notice of prepayment in full of duly executed and acknowledged by the Existing Term Loans pursuant to applicable Loan Party, and in accordance form for recording in the recording office where each such Mortgage was recorded, together with Section 2.03(a)(i) of such certificates, affidavits, questionnaires or returns as shall be required in connection with the Credit Agreementrecording or filing thereof under applicable law; and
(x9) a Committed Loan Notice with respect date down endorsements to the 2018 Incremental First Lien Term Loanexisting Mortgage Policies, not later than 10:00 a.m. (New York City time) one (1) Business Day prior or, to the Third Amendment Effective Date;extent such date down endorsement is not available in the particular jurisdiction, a new Mortgage Policy, which shall reasonably assure the Administrative Agent as of the date thereof that the Mortgage, as amended by the Mortgage Amendment, is a valid and enforceable first priority lien on such Mortgaged Property free and clear of all liens except for Permitted Encumbrances.
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall All fees required to be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates paid to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders Arranger on or before the date hereof shall have been paid.
(including the 2018 Incremental First Lien Lender), as applicable, all fees and, c) The Borrower shall have paid to the extent required by Section 10.04 Administrative Agent for the ratable account of each Lender, a payment equal to 0.40% of the Credit Agreementaggregate amount of such Lender’s Commitments on or before the date hereof.
(d) The Borrower shall have paid all reasonable, expenses (including reasonable documented out-of-pocket feescosts and expenses of the Administrative Agent in connection with the preparation, charges execution and disbursements delivery of counsel) that are due this Amendment (and payable on any previously contemplated amendments, waivers, forbearances or before documents of similar import), including the Third Amendment Effective Date reasonable fees and (ii) to out-of-pocket expenses of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the ArrangersAdministrative Agent, all other compensation separately agreed to be paid on the Third Amendment Effective Date;with respect thereto.
(ge) since April 4, 2018, there The maturity date of the Mayflower Term Loan shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on extended to December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income 2016 or a later date on terms and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior conditions satisfactory to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAdministrativeAgent.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit 2.01 of this Agreement contained in Section 3) shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and the accrued fees and expenses of counsel to the Administrative Agent.
(b) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the benefit of each Lender Party a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and (andexcept for the Notes, if any) in sufficient copies for each of the case of clause (vi) below, Initial Lenders and the Collateral Agent):Issuing Bank:
(i) executed counterparts of this Amendment;The Affiliate Guaranty.
(ii) The Notes, if any, to the order of the Initial Lenders that have requested Notes, respectively.
(iii) Certified copies of the resolutions or authorizations of the Board of Directors of each Loan Party authorizing the executionapproving each Loan Document to which such Loan Party is a party, delivery and performance of this Amendment and, in the case of the Borrower, certificate of incorporation and the borrowings hereunder, and a certification of a Responsible Officer bylaws of each Loan Party that such resolutions have not been modifiedand of all documents evidencing other necessary corporate action and governmental approvals, rescinded or amended and are in full force and effect;if any, with respect to the Loan Documents.
(iiiiv) either A certificate of the Organization Documents Secretary or an Assistant Secretary of each Loan Party or a certification by a Responsible Officer certifying the names and true signatures of each Loan Party that there have been no changes to the Organization Documents officers of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of authorized to sign each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes Document to the Responsible Officers set forth on the incumbency certificates of which such Loan Party is a party and the other documents to be delivered on the Second Amendment Effective Date;by such Loan Party hereunder.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) FriedBrobeck, FrankPhleger & Harrison LLP, Harriscounsel for ▇▇▇ Lo▇▇ ▇▇rties, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel ntially in the form of Exhibit D-1 hereto and a favorable opinion of General Counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificateParent, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of HoldingsD-2 hereto and, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective periodeach case, as to such other matters as any Initial Lenders or the case Issuing Bank through the Administrative Agent may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);reasonably request.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the The Administrative Agent shall have received:
(i) at least three Business Days prior to received on or before the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and antiDate a pay-money laundering rules and regulations, including the PATRIOT Actoff letter from BABC, as is reasonably requested in writing by agent under the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit BABC Agreement, which are hereby waived).
(f) there shall have been paid (i) together with duly executed UCC-3 termination statements, mortgage releases and such other instruments, in each case in form and substance satisfactory to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated necessary to terminate and satisfy all Liens created pursuant to the Acquisition BABC Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received each a fully executed copy of this Amendment.
(b) The Administrative Agent shall have received a duly executed copy of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each Second Amendment Fee Letter dated as of the Third date hereof.
(c) The Administrative Agent shall have received an updated collateral information certificate from each Loan Party.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Amendment Effective Date (orand executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the case form of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory Exhibit C to the Administrative Agent Credit Agreement, with appropriate insertions and attachments, including (and, in A) the case Operating Documents of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Operating Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Closing Date), (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Amendment Effective Date;
and other Loan Documents to which such Loan Party is party, and (vC) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute the Amendment and the other Loan Documents entered into in connection therewith on behalf of such Loan Party, (ii) a good standing certificates evidencing that certificate for each Loan Party is duly organized or formed from its respective jurisdiction of organization, and that (iii) certificates for foreign qualification from each jurisdiction where the failure of a Loan Party is validly existing and in good standing;to be qualified could reasonably be expected to have a Material Adverse Effect.
(vie) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the The Administrative Agent and the Collateral Agent;
shall have received a Solvency Certificate (vii) a customary certificate, substantially in the form of Exhibit J D to the Credit Agreement Agreement) from the chief financial officer, chief accounting officer or treasurer of Holdingsthe Borrower.
(f) The Administrative Agent shall have received the results of recent lien, certifying judgment and litigation searches in each of the jurisdictions reasonably required by the Administrative Agent, and such searches shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the Credit Agreement.
(g) There shall not have occurred since January 31, 2022, any event or condition that Holdings has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(h) All necessary consents and its Subsidiariesapprovals to this Amendment shall have been obtained.
(i) Immediately, on a consolidated basis after giving effect to the Transactionsthis Amendment, are Solvent; andno Default or Event of Default shall have occurred and be continuing.
(viiij) a certificateImmediately after giving effect to this Amendment, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent representations and warranties set forth in Sections 4(c)this Amendment, 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit AgreementAgreement and the other Loan Documents, after giving effect on as amended by this Amendment, to which it is a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
party (ixi) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations that is qualified by materiality shall be true and correct as of the Third Amendment Effective Date correct, and (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or periodii) that is not qualified by materiality, such representation and warranty shall be true and correct in all material respects respects, in each case, on and as of such date as if made on and as of such date, except to the respective date or for the respective periodextent any such representation and warranty expressly relates to an earlier date, as the in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representation and warranty shall be have been true and correct in all material respects (after giving effect to any or all respects, as applicable) as of such qualification of materiality);earlier date.
(dk) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) The Lenders and the Administrative Agent shall have received:
(i) at least three Business Days prior received all fees required to the Third Amendment Effective Datebe paid, and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) expenses for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall invoices have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders presented (including the 2018 Incremental First Lien Lender)reasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document) and under the Second Amendment Fee Letter, as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Second Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Yext, Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments shall be subject to the Credit Agreement contained in Section 3) shall become effective on prior or concurrent satisfaction of each of the following conditions precedent (the date on which the following such conditions precedent shall be satisfied (such dateare satisfied, the “Third Second Amendment Effective Date”):
(a) Borrower and the Lenders shall have duly executed and delivered this Amendment to the Administrative Agent. The Administrative Agent shall have received a fully executed copy hereof and of each of the followingother document required hereunder.
(b) The Administrative Agent shall have received an updated Collateral Information Certificate from each Loan Party, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing such Loan Party andParty, in the case of clause (i) below, and any other diligence information reasonably requested by the 2018 Incremental First Lien Lender, each dated as of Administrative Agent prior to the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Second Amendment Effective Date.
(c) and each in form and substance reasonably satisfactory to the The Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and shall have received a certification of closing certificate from a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes Borrower certifying as to the Organization Documents following matters: (i) no Default or Event of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or Default shall have occurred and be continuing on the Second Amendment Effective Date after giving effect to this Amendment and (as applicable);
(ivii) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes after giving effect to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered this Amendment on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each , the representations and warranties made by any Loan Party is duly organized or formed and that each Loan Party is validly existing herein and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on other Loan Documents to which it is a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings party shall be (A) certifying that to the conditions precedent set forth extent qualified by materiality, “Material Adverse Effect” or similar materiality qualifiers, true and correct in Sections 4(c)all respects, 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loanextent not qualified by such materiality qualifiers, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct in all material respects, in each case, on and as of the Third Amendment Effective Date date hereof, as though made on and as of such date (except in to the case of extent that any Third Amendment Effective Date Representation which such representation and warranty expressly relates to a given date or periodan earlier date, in which case such representation and warranty shall be true and correct in all material respects as of the respective date (or for the respective periodall respects, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accountingearlier date);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Enfusion, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective upon the satisfaction of the condition set forth in paragraph (a) below; provided that the amendment and restatement of the Original Credit Agreement provided for in Section 2, the authorization set forth in Section 3 and the agreement in Section 5 shall become effective only upon the satisfaction, on a date (the date "Effective Date") on which or prior to February 28, 2004, of each of the following conditions precedent shall be satisfied set forth below (and failing such satisfaction by such date, the “Third Amendment Effective Date”such amendment and restatement, authorization and agreement shall cease to be of any further force or effect):
(a) the The Administrative Agent shall have received counterparts hereof duly executed and delivered by each Tranche B Term Lender and by Tranche A Term Lenders and Revolving Lenders representing the Majority Banks under the Original Credit Agreement.
(b) The Administrative Agent shall have received such evidence as it shall reasonably have requested as to the organization, existence and good standing of each Credit Party, the corporate power and authority of the followingBorrower to enter into this Amendment and to perform its obligations hereunder, each of which shall be originals or facsimiles (followed promptly the authorization by originals) unless otherwise specified, each properly executed by a Responsible Officer the Credit Parties of the signing Loan Party andTransactions and any other legal matters relating to the Borrower, in the case of clause (i) belowother Credit Parties, by the 2018 Incremental First Lien LenderCredit Documents or the Transactions, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(and, in c) The Administrative Agent shall have received favorable written opinions (addressed to the case Administrative Agent and the Lenders and dated the Effective Date) of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties Borrower, and (yii) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLPthe General Counsel, special Georgia counsel to the Loan PartiesAssociate General Counsel or an Assistant General Counsel of the Borrower, in each case dated the Third Amendment Effective Date, addressed in a form reasonably satisfactory to the Administrative Agent, and covering such matters relating to the Collateral AgentCredit Parties, the 2018 Incremental First Lien Lender Credit Documents or the Transactions as the Administrative Agent or the Majority Lenders shall reasonably request.
(d) The Administrative Agent shall have received a certificate of an officer of the Borrower to the effect that the representations and warranties set forth in Section 4 and in the Restated Credit Agreement are true and correct in all respects material to the rights or interests of the Lenders on and as of the Effective Date.
(e) At the time of and immediately after the Effective Date, the Borrower and the other Credit Parties shall be in compliance with all the terms and provisions set forth herein, in the Restated Credit Agreement and in the other Credit Documents in all respects material to the rights or interests of the Lenders, and at the time of and immediately after the Effective Date, no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate of an officer of the Borrower to that effect.
(f) The Administrative Agent shall have received the Amendment Fees payable by the Borrower pursuant to Section 5 and all other fees payable to the Arrangers and the Administrative Agent.
(g) The Guarantee and Collateral Agreement shall have been amended to provide that all the Obligations will be secured by a second Lien, junior to the Lien securing the US Term Facility Obligations, the US Revolving Facility Obligations, the US Miscellaneous Obligations and the Collateral Agent Obligations, by all the US Facilities Pledged Collateral and the US Facilities Article 9 Collateral (other than any such US Facilities Article 9 Collateral constituting Indenture Properties or "manufacturing facilities", as defined in form the Swiss Franc Note Agreement, to the extent the securing of the ABL Facilities Obligations with such Collateral would require that Indebtedness under the Indentures be ratably secured), and substance by the Borrower's headquarters building in Akron, Ohio;
(h) The US Term Facility Agreement and the US Revolving Facility Agreement shall have been amended to require that (i) if proceeds from borrowings under the Restated Credit Agreement pursuant to commitments becoming effective substantially concurrently with the Effective Date shall exceed $300,000,000, the Borrower shall prepay loans, cash collateralize reimbursement obligations in respect of letters of credit and reduce commitments under the US Term Facility Agreement and the US Revolving Facility Agreement in an aggregate amount equal to 100% of such proceeds in excess of $300,000,000, net of the aggregate fees and out-of-pocket expenses paid by the Borrower in connection with the borrowings under the Restated Credit Agreement and the related bank amendments and (ii) the Borrower shall apply 50% of the Net Cash Proceeds of incurrences or issuances of Senior Subordinated-Lien Indebtedness to prepay loans, cash collateralize reimbursement obligations in respect of letters of credit and reduce commitments under the US Term Facility Agreement and the US Revolving Facility Agreement.
(i) The US Term Facility Agreement, the US Revolving Facility Agreement and the European Facilities Agreement shall have been or shall simultaneously be amended in a manner reasonably satisfactory to the Administrative Agent to permit the incurrence, issuance and sale of Senior Subordinated-Lien Indebtedness and the Collateral Agent;
(vii) other transactions contemplated hereby, in each case in a customary certificate, manner substantially in the form of Exhibit J corresponding to the amendments to the Original Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees andeffected hereby, to the extent required by Section 10.04 of applicable. The Administrative Agent shall notify the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) Lenders when it determines that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall foregoing conditions have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income satisfied and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP that this Amendment and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective DateRestated Credit Agreement have become fully effective, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition notice shall be consummated pursuant to conclusive and binding upon the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderLenders.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Conditions Precedent to Effectiveness. This Twelfth Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied have been fulfilled or waived prior to or concurrently herewith, each to the satisfaction of the Administrative Agent (such date, the “Third Twelfth Amendment Effective Date”):
(a) This Twelfth Amendment shall have been duly executed and delivered by the respective parties hereto, and the Administrative Agent shall have received a counterpart of this Twelfth Amendment signed by each party hereto.
(b) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the on or about the date hereof and executed by a Responsible Officer of such Loan Party, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Loan Documents to which such Loan Party is party and (C) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, and (ii) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization.
(c) All necessary consents and approvals to this Twelfth Amendment shall have been obtained.
(d) No Default or Event of Default shall have occurred and be continuing, after giving effect to the effectiveness of this Twelfth Amendment and the consummation of the followingtransactions contemplated hereby.
(e) After giving effect to this Twelfth Amendment and the consummation of the transactions contemplated hereby, each of which the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be originals true and correct in all material respects on and as of the date hereof, as though made on such date (except to the extent that (i) such representations and warranties relate solely to an earlier date, in which case they shall be true and correct in all material respects (or facsimiles all respects if clause (followed promptly ii) below is applicable) as of such earlier date or (ii) such representations or warranties are qualified by originalsmateriality in the text thereof, in which case they shall be true and correct in all respects).
(f) unless otherwise specifiedThe Administrative Agent shall have received the Collateral Information Certificate, each properly executed by a Responsible Officer of the signing Loan Party andBorrower.
(g) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent, certifying (andA) that the conditions specified in Sections 5.2(a) and (e) have been satisfied, and (B) that there has been no event or circumstance since January 31, 2022, that has had or that could reasonably be expected to have, either individually or in the case aggregate, a Material Adverse Effect.
(h) The Administrative Agent and each Lender shall have received, prior to the Twelfth Amendment Effective Date, a Certificate of clause (vi) belowBeneficial Ownership and all documentation and other information requested to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the Collateral Agent):Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party.
(i) The Administrative Agent shall have received the results of recent lien searches in any jurisdiction reasonably required by the Administrative Agent, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 or Liens to be discharged on or prior to the Twelfth Amendment Effective Date.
(j) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 6.6 hereof and Section 5.2(b) of the Guarantee and Collateral Agreement, in form and substance satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received the fee letter agreement, dated as of the Twelfth Amendment Effective Date, duly executed counterparts by the Borrower.
(l) The Administrative Agent shall have received payment of all costs and all reasonable out-of-pocket expenses in connection with the preparation, negotiation, execution and delivery of this Amendment;Twelfth Amendment and any documents and instruments relating hereto in accordance with Section 10.5 of the Credit Agreement.
(iim) resolutions The Administrative Agent shall have received a Solvency Certificate from the chief financial officer or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case treasurer of the Borrower, .
(n) The Administrative Agent shall have received the borrowings hereunder, and a certification results of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended recent intellectual property search (including searches with the United States Patent and are in full force Trademark Office and effect;
(iiiUnited States Copyright Office) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel with respect to the Loan Parties, in each case dated with the Third Amendment Effective Date, addressed results of such searches to be reasonably satisfactory to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, .
(o) The Administrative Agent shall have received executed supplements to each applicable Intellectual Property Security Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Sprinklr, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The Revolving Loan Commitment and the amendments Term Loan Commitment shall not be effective until, and Lender shall not be required to the Credit Agreement contained in Section 3) shall become effective on fund any Loan until, the date on which that each of the following conditions precedent shall be has been satisfied as determined by Lender in its sole discretion (such date, the “Third Amendment Effective unless waived by ▇▇▇▇▇▇ in its sole discretion) ("Closing Date”"):
(a) This Agreement, the Administrative Agent Revolving Loan Note, the Term Loan Note and each Security Document contemplated in Schedule 7.1 as of the Closing Date and each other Loan Document to which any Loan is a party shall be executed by the Loan Parties and delivered to Lender.
(b) Lender shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause form and substance satisfactory to Lender and its counsel:
(i) belowa certificate, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the executionAgreement, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party certifying (A) that attached copies of such certificate of formation and limited liability company agreement are true and complete, and in full force and effect, without amendment except as shown, (B) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents by such each Loan Party is true and complete, and that such resolutions have not been modified, rescinded or amended and 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 Agreement and the other Loan Documents, and (C) to the title, name and signature of each Person authorized to sign such Loan Documents;
(ii) a certificate executed by a duly authorized knowledgeable Responsible Officer of Borrower certifying that (A) no Default or Event of Default exists; (B) the representations and warranties set forth in Article IV are true and correct in all material respects (or, to the extent any such representation or warranty is subject to a materiality qualifier or Material Adverse Effect standard, such representation or warranty is true and correct in all respects); and (C) each Loan Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents as of the Closing Date;
(iii) either Certificates of Good Standing or Legal Existence, as the Organization Documents case may be, issued by the Secretary of State of the states of organization and qualification of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing DateParty, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized a limited liability company legally existing in the state of its organization and in each state where it is qualified to do business or formed and that each its equivalent for any Loan Party is validly existing organized outside the United State, in form and substance acceptable to Lender;
(iv) Each document (including any UCC financing statement) required by the Security Documents or under law or reasonably requested by ▇▇▇▇▇▇ to be filed, registered or recorded in good standingorder to create in favor of Lender a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (subject only to Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of Lender in such Collateral) shall be in proper form for filing, registration or recordation;
(v) Lender shall have received the original executed limited liability company membership interest certificates representing one hundred percent (100%) of the limited liability company membership interests in the Pledged Entities pledged pursuant to Security Documents, together with an undated transfer power for each such membership interest certificate executed in blank;
(vi) Lender shall have received evidence that all filing, recordation, subscription and inscription fees and all recording and other similar fees, and all recording, stamp and other Taxes and other expenses related to such filings, registrations and recordings necessary for and related to the transactions contemplated by this Agreement and the other Loan Document to be consummated on the Closing Date (to the extent the obligation to make such payment then exists) are to be paid in full by or on behalf of Borrower on the Closing Date;
(vii) Lender shall have received (A) results of searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a favorable opinion filing would need to be made in order to perfect the security interest of Lender in the Collateral and (xB) Friedresults of tax lien, Frankjudgment and bankruptcy searches for each Loan Party in such jurisdictions and, Harrisin each case, such results shall reveal no Liens other than Permitted Liens or shall otherwise be satisfactory to Lender in its sole discretion (or the equivalent searches in each case if the jurisdiction of incorporation or formation is outside the U.S.).
(viii) copies of all instruments and agreements governing, evidencing and/or securing any and all Senior Debt and a written consent by the Senior Lender to the execution and performance by the Loan Parties of the Loan Documents executed by the Senior Lender and otherwise in form and substance acceptable to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel ;
(c) All expenses incurred by Lender prior to the Loan Parties and (y) Eversheds Closing Date shall have been paid by ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Assumption, Ratification and Modification Agreement (Energea Portfolio 2 LLC)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 Amended Agreement shall not become effective, and the amendments no Lender shall be obligated to the make any Advance and no Issuing Bank shall be obligated to issue any Letter of Credit Agreement contained in Section 3) shall become effective on the date on which hereunder, until each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):is satisfied:
(a) The Administrative Agent shall have received counterparts of this Agreement duly executed by each of the parties listed on the signature pages hereof (or in the case of any party as to which such an executed counterpart shall not have been received, the Administrative Agent shall have received each evidence satisfactory to it of the following, each execution and delivery of which a counterpart hereof by such party).
(b) The Administrative Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of have received the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each following in form and substance reasonably satisfactory to the Administrative Agent (and, unless otherwise specified) and in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts Certified copies of this Amendment;the resolutions of the Board of Directors of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party.
(ii) resolutions A certificate of each Loan Party, signed on behalf of such Loan Party the Chairman, any Vice Chairman, any Deputy Chairman, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the President or authorizations any Vice President (or equivalent officer) of such Loan Party and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (B) the absence of any event occurring and continuing, or resulting from the Effective Date, that constitutes a Default.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan Party authorizing certifying the execution, delivery names and performance of this Amendment and, in the case true signatures of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents officers of such Loan Party since authorized to sign each Loan Document to which it is or is to be a party and the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);other documents to be delivered hereunder and thereunder.
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (xA) Fried, Frank, Harris, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Parent, in substantially the form of Exhibit D-1 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (B) ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Loan Parties, in substantially the form of Exhibit D-2 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Bermuda counsel for ACE Bermuda and ACE Tempest, in substantially the form of Exhibit D-3 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(c) There shall have occurred no material adverse change since December 31, 2006 in the business, financial condition, operations or properties of the Parent and its Subsidiaries, taken as a whole.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Parties and Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (x) would be reasonably expected to have a Material Adverse Effect or (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLPwould reasonably be expected to materially adversely affect the legality, special Georgia counsel to validity or enforceability of any Loan Document or the other transactions contemplated by the Loan Parties, in each case dated Documents.
(e) The Borrowers shall have paid all accrued fees of the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender Agents and the Lenders, in form Lenders and substance reasonably satisfactory all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel on behalf of all of the Collateral Agent;
(vii) a customary certificateLenders), substantially in the form of Exhibit J each case to the Credit Agreement from extent then due and payable. On the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by (i) the Existing Agreement shall be automatically amended and restated in its entirety to read as this Amended Agreement, (ii) each Person listed on the signature pages hereof which is not a Responsible Officer party to the Existing Agreement shall become a Lender party to this Agreement, (iii) the Commitment of Holdings each Lender shall be the amount set forth opposite the name of such Lender on the Commitment Schedule, (Aiv) certifying any Lender party to the Existing Agreement but not listed in the Commitment Schedule (a “Departing Bank”) shall cease to be a Lender party to this Agreement and all accrued fees and other amounts payable under the Existing Agreement for the account of such Departing Bank shall be immediately due and payable; provided that the conditions precedent set forth in provisions of Sections 4(c)2.11, 4(g) 2.13 and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full 9.04 of the Existing Term Loans Agreement shall continue to inure to the benefit of such Departing Bank, (v) each Lender’s Letter of Credit Participating Interests in each outstanding Letter of Credit issued pursuant to and the Existing Agreement shall be readjusted in accordance with Section 2.03(a)(ieach Lender’s Pro Rata Share and (vi) each Departing Bank’s Letter of Credit Participating Interests hereunder in the outstanding Letters of Credit Agreement; and
(x) a Committed Loan Notice with respect issued pursuant to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to Existing Agreement shall be terminated. Promptly after the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior deliver to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 a copy of this Amended Agreement including photocopies of counterpart signature pages signed by each of the Credit Agreement, which are hereby waived)parties hereto.
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Ace LTD)
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments is subject to the Credit Agreement contained in Section 3) shall become effective on satisfaction of the following conditions precedent the date on which the following all such conditions precedent shall be have been satisfied (such dateor waived, the “Third First Amendment Effective Date”):
(a) The Agent and the Administrative Agent Arranger shall have received this Amendment duly executed and delivered by a Responsible Officer of each of the following, each of which Loan Parties;
(b) The Agent and the Arranger shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly have received the First Amendment Fee Letter duly executed by a Responsible Officer of the signing Loan Party and, in Borrower;
(c) The Agent shall have received the case of clause following:
(i) belowa copy of each amendment to the operating agreement, partnership agreement, bylaws, company agreement or other governing agreement of each Loan Party, if any, executed after the date of the Credit Agreement, certified (as of a date reasonably near the date of the extension of credit) as being a true and correct copy thereof by a Responsible Officer of such Loan Party (or certifying as to no amendments since last delivered to the Agent and the Arranger on the Closing Date);
(ii) a copy, certified by the 2018 Incremental First Lien LenderSecretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party is organized of each amendment to any charter of such Loan Party filed, if any, after the date of the Credit Agreement, and certifying that such amendments are the only amendments to such Loan Party’s charter on file in such office;
(iii) an electronic confirmation from the Secretary of State or other applicable Governmental Authority of each jurisdiction in which each such Loan Party is organized certifying that such Loan Party has paid all franchise taxes to the date of such certification and is duly organized and in good standing under the laws of such jurisdiction on the date hereof, prepared by, or on behalf of, a filing service acceptable to Arranger;
(iv) a copy of a certificate of the Secretary of State or other applicable Governmental Authority of the States of Oklahoma, Texas and Kansas, dated reasonably near the date of the extension of credit, stating that each Loan Party is duly qualified and in good standing as a foreign corporation or entity in each such jurisdiction and has filed all annual reports required to be filed to the date of such certificate; and electronic confirmation, from the Secretary of State or other applicable Governmental Authority of each such jurisdiction on the date hereof as to the due qualification and continued good standing of each such Person as a foreign corporation or entity in each such jurisdiction on or about such date, prepared by, or on behalf of, a filing service acceptable to Arranger;
(v) true, correct and complete copies of the resolutions duly adopted by the Board of Directors of each Loan Party authorizing each Loan Party to enter into the Amendment and the other Loan Documents and to execute, deliver and perform such Loan Party’s obligations thereunder together with a certification that such resolutions have not been amended, modified, or revoked and are in full force and effect as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third First Amendment Effective Date; and
(vi) certification as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Person by a Responsible Officer of such Loan Party (or certifying as to no change since last delivered to the Agent and the Arranger on the Closing Date).
(d) Since the Closing Date, no Material Adverse Effect shall have occurred and be continuing;
(e) After giving effect to the amendments set forth herein, the representations and warranties of Borrower contained in the Loan Documents are true and accurate in all material respects as of the date hereof with the same force and effect as if such had been made on and as of the date hereof;
(f) After giving effect to the amendments set forth herein, no Default or Event of Default shall have occurred and be continuing on the date hereof or shall occur as a result hereof;
(g) Agent shall have received the executed legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, with respect to such matters as may be reasonably requested by ▇▇▇▇▇▇▇▇, and in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this AmendmentArranger;
(iih) resolutions Borrower shall have paid, or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowercaused to be paid, the borrowings hereunder, outstanding fees and a certification expenses of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are SolventArranger; and
(viiii) a certificate, dated as The Agent shall have received copies of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; andeach of:
(x) a Committed Loan Notice draft Purchase and Sale Agreement (the “Crescent PSA”) to be executed by Crescent Gladiator LLC (“Crescent”), as purchaser, and the seller party thereto, in connection with respect the Chief Acquisition, which draft the parties hereto acknowledge and agree was delivered to counsel to the 2018 Incremental First Lien Term LoanArranger on August 25, not later than 10:00 a.m. 2024 (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be“Approved Draft PSA”); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(iiy) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit that certain Acquisition and Cooperation Agreement, which are hereby waiveddated August 23, 2024, between Mach Natural Resources LP (“Mach”) and Crescent (such agreement, together with the Crescent PSA, the “Chief Acquisition Agreements”).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including The obligations of the agreements in Section 2 Lenders and the amendments LC Issuers to the make any Credit Agreement contained in Section 3) shall become effective on the date on which Extension hereunder are subject to satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, in each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each case where applicable properly executed by a Responsible Officer of the signing Loan Party andParty, in dated the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts a counterpart of this AmendmentAgreement signed on behalf of the Borrower and the Subsidiary Loan Parties;
(ii) resolutions or authorizations the ABL Intercreditor Agreement, signed on behalf of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectparty thereto;
(iii) either the Organization Documents such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party or a certification by as the Administrative Agent may reasonably request to evidence the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)is a party or is to be a party;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such documents and certifications as the Administrative Agent may reasonably request to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent, each Lender and each LC Issuer and dated the Closing Date, and covering such matters as the Administrative Agent may reasonably request;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia such local counsel to the Loan Parties, in each case addressed to each Agent, each Lender and each LC Issuer and dated the Third Amendment Effective Closing Date, addressed and covering such matters concerning the Loan Parties and the Loan Documents, as the Administrative Agent may reasonably request; Table of Contents
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by any Loan Party and the validity against any Loan Party of the Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate of a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(c) and 4.02(d) have been satisfied;
(ix) a certificate from the chief financial officer of the Borrower attesting to the Administrative AgentSolvency of the Loan Parties before and after giving effect to the Transactions;
(x) a Perfection Certificate, together with all attachments contemplated thereby, including the Collateral Agent, results of a search of the 2018 Incremental First Lien Lender Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the Lenders, in form financing statements (or similar documents) disclosed by such search and substance evidence reasonably satisfactory to the Administrative Agent and that the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, Liens indicated by such financing statements are SolventPermitted Liens or have been released; and
(viiixi) a certificatecompleted Borrowing Base Certificate and a certificate as to the Unrestricted Cash of the Loan Parties, each dated the Closing Date but calculated (A) with respect to the Borrowing Base, as of August 26, 2007, and (B) with respect to the Third Amendment Effective DateUnrestricted Cash, duly executed as of September 25, 2007, and signed by a Responsible Officer of Holdings the Borrower, which certificates shall be reasonably satisfactory in form and substance to the Administrative Agent and shall demonstrate that, as of such date, after giving pro forma effect to the Transactions contemplated to be consummated on the Closing Date (including the making of any Loans requested to be made pursuant to the notice of borrowing referred to in Section 4.02(a)), the sum of (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date Excess Availability and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth Unrestricted Cash of the Loan Parties shall be at least $100,000,000.
(b) The Guarantee and Collateral Requirement shall have been satisfied.
(c) The Lenders shall have received the financial statements referred to in Section 2.12(a5.05.
(d) The Lenders shall have received financial projections for the fiscal quarter ending September 30, 2007 and for each of the Credit Agreementfiscal years ending September 30, after giving effect 2008, 2009 and 2010 (with such projections being presented on a Pro Forma Basis quarterly basis, in the case of projections for the fiscal year ending September 30, 2008).
(e) The Administrative Agent shall have received evidence that the insurance required by Section 6.08 and by the ABL Guarantee and Collateral Agreement is in effect.
(f) All fees required to be paid to the incurrence Agents and the Arrangers on or before the Closing Date shall have been paid. All costs and expenses (including collateral examination and appraisal fees and legal fees and expenses) required to be paid to the Agents and the Arrangers shall have been paid to the extent due and invoiced. Table of the 2018 Incremental First Lien Term Commitment;Contents
(ixg) The Arrangers shall have received the results of field examinations and appraisals (prepared by a notice of prepayment in full of third party appraisal firm selected by the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(iArrangers) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loanassets included in the Borrowing Base, not later than 10:00 a.m. (New York City time) one (1) Business Day prior and the results of such examinations and such appraisals shall in each case be reasonably satisfactory to the Third Amendment Effective Date;Arrangers.
(bh) the Borrower The Lenders shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations. Notwithstanding the foregoing, including if the PATRIOT ActBorrower shall have used commercially reasonable efforts to procure and deliver, as is reasonably requested in writing by but shall nevertheless be unable to deliver, any Deposit Account Control Agreements required to perfect Liens on the Administrative Agent at least ten (10) business days prior ABL Collateral, such delivery shall not be a condition precedent to the Third Amendment Effective Date; and
(ii) for obligations of the account of each Lender (as defined in Lenders or the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid LC Issuers hereunder on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Closing Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which but shall not be required to be prepared accomplished as provided in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderSection 6.16.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective and enforceable against the parties hereto on the date on which each of the following conditions precedent shall be satisfied have been fulfilled to the reasonable satisfaction of the Administrative Agent (such date, the “Third Amendment Effective Date”):
(a) the The Administrative Agent shall have received each a counterpart of this Agreement, duly and validly executed and delivered by duly authorized officers of the followingBorrowers, each of which Guarantor, the Administrative Agent, and each Lender.
(b) The Administrative Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause have received (i) belowwith respect to each Loan Party, by the 2018 Incremental First Lien Lender, a certificate of an authorized signatory of each such entity dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
Agreement and certifying (iia) resolutions or authorizations that attached thereto is a true and complete copy of the Organization Documents of each Loan Party such entity as in effect on the date of that certificate, (b) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderAgreement, and a certification of a Responsible Officer of each other document to which such Loan Party is a party to and that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, (iiic) either as to the Organization Documents incumbency and specimen signature of each officer executing any Loan Party Document or any other document delivered in connection herewith on behalf of each such entity, (d) [reserved], and (ii) a certification by a Responsible certificate from the Chief Financial Officer of each Loan Party the General Partner on behalf of the US Borrower certifying on behalf of the US Borrower, and not in an individual capacity, that there have been no changes after giving effect to this Agreement, (a) this Agreement constitutes the Organization Documents valid and legally binding obligation of such Loan Party since enforceable in accordance with its terms, except as may be limited by any applicable Debtor Relief Laws affecting creditors’ rights generally or by general principles of equity, (b) the Closing Date, representations and warranties by the New Incremental First Lien Term Commitments Effective Date and/or Borrowers or the Second Amendment Effective Date (Guarantors as applicable);, contained in the Credit Agreement and the other Loan Documents, to which it is a party, are true and correct on and as of the date hereof in all material respects as though made as of the date hereof, except to the extent such representations and warranties are qualified by materiality, in which case they shall be true and correct in all respects; and (c) no Default or Event of Default exists under the Credit Agreement or any of the other Loan Documents.
(ivc) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there The Administrative Agent shall have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) received a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative AgentAgent and each Lender, as to customary matters concerning the Collateral Agent, the 2018 Incremental First Lien Lender Loan Parties and the LendersLoan Documents as the Required Lenders may reasonably request.
(d) The Administrative Agent shall have received a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received duly executed counterparts of that certain Fee Letter between the Administrative Agent and the Borrowers, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there The Administrative Agent shall have been paid (i) received duly executed counterparts of that certain Waiver to Marketing Services Agreement dated as of November 21, 2023 between USD Clean Fuels LLC, a Delaware limited liability company, and West Colton Rail Terminal LLC, a Delaware limited liability company, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received that certain Waiver to Marketing Services Agreement dated as of November 21, for the account of 2023, between USD Marketing LLC, a Delaware limited liability company, and ▇▇▇▇▇▇ Crude Terminal LLC, a Delaware limited liability company, in form and substance reasonably satisfactory to the Administrative Agent.
(h) The Administrative Agent shall have received that certain Letter Agreement to Amended and Restated Omnibus Agreement dated as of November 21, 2023, among US Development Group, LLC, a Delaware limited liability company, USD Group LLC, a Delaware limited liability company, the Lenders (including the 2018 Incremental First Lien Lender)US Borrower, as applicableUSD Partners GP LLC, all fees anda Delaware limited liability company, and USD Logistics Operations LP, a Delaware limited partnership, in form and substance reasonably satisfactory to the extent required by Section 10.04 of the Credit Agreement, expenses Administrative Agent.
(including i) The Borrowers shall have paid in cash (a) all reasonable and documented fees and out-of-pocket expenses incurred by the Administrative Agent incurred in connection with the Credit Agreement and the other Loan Documents, (b) all reasonable and documented fees, and out-of-pocket charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) ▇▇▇▇▇ ▇▇▇▇▇ LLP, US counsel to the ArrangersAdministrative Agent (directly to such counsel if requested by the Administrative Agent), all other compensation separately agreed to be paid on incurred in connection with the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP Credit Agreement and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31other Loan Documents, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet all reasonable and related statement documented fees, and out-of-pocket charges and disbursements of income of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Borrower as of Administrative Agent (directly to such counsel if requested by the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (bAdministrative Agent), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (incurred in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently connection with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated Credit Agreement and the Contribution shall have been made; and
other Loan Documents and (jd) the Acquisition shall be consummated pursuant to the Acquisition Agreementall reasonable and documented fees, substantially concurrently out-of-pocket charges and disbursements incurred by PA Consulting Group, Inc. incurred in connection with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers Credit Agreement and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderother Loan Documents.
Appears in 1 contract
Sources: Amendment No. 5 to Amended and Restated Credit Agreement (USD Partners LP)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):
(a) This Agreement shall be effective upon satisfaction of the conditions precedent that:
(i) each Transaction Document shall have been duly executed by, and delivered to, the parties thereto, and the Administrative Agent shall have received each copies of the followingAdvisory Agreements and such other documents, each of which instruments, agreements, certificates and legal opinions as the Administrative Agent shall be originals or facsimiles (followed promptly reasonably request in connection with the transactions contemplated by originals) unless otherwise specifiedthis Agreement, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent;
(ii) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by any Borrower Party or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(iii) each Borrower Party’s underwriting, servicing, collection, operating, and reporting procedures and systems are satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)its sole discretion;
(iv) either incumbency certificates a satisfactory review by the Administrative Agent of all organizational documents and material contracts of each Loan Borrower Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to (including, without limitation, the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective DateAdvisory Agreements);
(v) good standing certificates evidencing that a satisfactory review by the Administrative Agent of business, financial, legal, tax and accounting due diligence relating to transactions contemplated hereby, each Loan Borrower Party is duly organized or formed and that each Loan Party is validly existing and the transactions contemplated hereunder are satisfactory to the Administrative Agent in good standingits sole discretion;
(vi) a favorable opinion in the reasonable judgment of (x) Friedthe Administrative Agent and each Lender Agent, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, there not having been any change in each case dated the Third Amendment Effective Date, addressed to Applicable Law which adversely affects any Lender’s or the Administrative Agent’s entering into the transactions contemplated by the Transaction Documents or material disruption after December 31, 2013 in the Collateral Agentfinancial, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to banking or commercial loan or capital markets generally;
(vii) the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent Lenders shall have received:
(i) at least three Business Days prior to , sufficiently in advance of the Third Amendment Effective Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActUniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as is reasonably requested in writing Public Law 107-56;
(viii) a satisfactory due diligence review by the Administrative Agent at least ten (10) business days prior to of each Loan submitted for consideration in the Third Amendment Effective Date; andinitial Collateral Portfolio;
(iiix) for the account of Administrative Agent and each Institutional Lender shall have received each required approval (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (including, without payment for any losslimitation, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waivedfrom its internal credit committee).;
(fx) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders shall have received the fees (including the 2018 Incremental First Lien Lender)fees, as applicable, all fees and, disbursements and other charges of counsel to the extent required by Section 10.04 Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(xi) since December 31, 2013, no material adverse change has occurred in the financial condition of the Credit AgreementEquityholder, expenses the Seller, any Borrower Advisor or the Borrower or in any material portion of the assets in the initial Collateral Portfolio;
(including reasonable outxii) the Administrative Agent shall have received satisfactory evidence that the Seller, the Borrower and the Collateral Manager have obtained all required consents and approvals of all Persons to the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby or thereby;
(xiii) the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the form of Exhibit P;
(xiv) the Borrower and the Collateral Manager shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, Event of Default or Collateral Manager Event of Default has occurred and is continuing;
(xv) the Administrative Agent shall have received (i) the customary executed legal opinion or opinions of Dechert LLP, counsel to the Borrower and the Collateral Manager, covering enforceability, grant and perfection of the security interests on the Collateral Portfolio and non-of-pocket fees, charges and disbursements consolidation of counsel) that are due and payable on or before the Third Amendment Effective Date Borrower and (ii) bring-down legal opinions of Dechert LLP covering the enforceability of the Advisory Agreements as of the Closing Date, in each case, in form and substance acceptable to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective DateAdministrative Agent in its reasonable discretion;
(gxvi) since April 4all corporate and other proceedings, 2018and all documents, there instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been no Material Adverse Effect (as defined be reasonably satisfactory in form and substance to the Acquisition Agreement)Administrative Agent;
(hxvii) the Arrangers each Lender shall have received a duly executed copy of its Variable Funding Note, in a principal amount equal to the Commitment of such Lender;
(axviii) an audited consolidated the UCC-1 financing statement is in proper form for filing in the filing office of financial position, consolidated statements the appropriate jurisdiction;
(xix) the Administrative Agent shall have received a secretary’s certificate of income and comprehensive income, consolidated statement each of changes in partners’ equity and consolidated statement of cash flows of Master LP the Collateral Manager and the Subsidiaries Borrower that includes a copy of the resolutions (as or other authorizing instruments, if applicable), in form and substance satisfactory to the Administrative Agent, of the Board of Directors (or similar governing or managing body) of such terms are defined in Person authorizing (i) the Acquisition Agreement) for execution, delivery and performance of this Agreement and the fiscal year ended on December 31, 2017other Transaction Documents to which it is a party, (bii) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheetthe Borrower, the borrowings contemplated hereunder, and (iii) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X the Borrower, the granting by it of the Securities Act Liens created pursuant to the Transaction Documents, certified by the Secretary or an Assistant Secretary (or other authorized Person) of 1933such Person as of the Closing Date, as which certification shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions, or other authorizing instruments, if applicable, thereby certified have not been amended, modified, revoked or include adjustments for purchase accounting)rescinded;
(xx) the Administrative Agent shall have received a certification of each of the Collateral Manager and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of such Person executing any Transaction Document, which certification may be included in the certificate delivered in respect of such Person pursuant to Section 3.01(a)(xix) and satisfactory in form and substance to the Administrative Agent and shall be executed by an Authorized Person of such Person;
(xxi) the Administrative Agent shall have received true and complete copies of the organizational documents of each of the Collateral Manager and the Borrower, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary (or other authorized Person) of such Person, which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.1(a)(xix) and shall be in form and substance satisfactory to the Administrative Agent;
(xxii) the Administrative Agent shall have received certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Collateral Manager and the Borrower (i) prior toin the jurisdiction of its organization and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(xxiii) the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or substantially concurrently with purported to be created, by the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing Transaction Documents shall have been consummated completed;
(xxiv) the Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the Contribution results of such search shall be satisfactory to the Administrative Agent;
(xxv) the Borrower shall have been madereceived the executed legal opinion or opinions of L▇▇▇▇ Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which the each such Person is a party; and
(jxxvi) the Acquisition shall be consummated pursuant Administrative Agent (with a copy to the Acquisition Agreement, substantially concurrently with Collateral Custodian and the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition AgreementCollateral Agent) shall be deemed materially adverse to have received the Arrangers and the 2018 Incremental First Lien Lender and Initial Notice of Borrowing.
(b) neither By its execution and delivery of this Agreement, the reduction Borrower hereby certifies that each of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (conditions precedent to the extent funded with the proceeds effectiveness of an Equity Offering (as defined this Agreement set forth in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderthis Section 3.01 have been satisfied.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Investment Corp II)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the Borrower, the Administrative Agent and the Required Lenders. The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly a fully executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts copy of this Amendment;.
(iib) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis Immediately after giving effect to the Transactionsthis Amendment, are Solvent; andno Default or Event of Default shall have occurred and be continuing.
(viiic) a certificateImmediately after giving effect to this Amendment, dated as of the Third Amendment Effective Daterepresentations and warranties made by each Loan Party in this Amendment, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on as amended by this Amendment and the other Loan Documents to which it is a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
party (ixi) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations that is qualified by materiality shall be true and correct as of the Third Amendment Effective Date correct, and (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or periodii) that is not qualified by materiality, such representation and warranty shall be true and correct in all material respects respects, in each case, on and as of such date as if made on and as of such date, except to the respective date or for the respective periodextent any such representation and warranty expressly relates to an earlier date, as the in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representation and warranty shall be have been true and correct in all material respects (after giving effect to any or all respects, as applicable) as of such qualification of materiality);earlier date.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) The Lenders and the Administrative Agent shall have received:
received (i) at least three Business Days prior all fees required to be paid pursuant to Section 5 below and (ii) all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), to the Third extent provided in Section 10.5 of the Credit Agreement on or before the Fourth Amendment Effective Date, all documentation . Each Lender party hereto (including SVB) and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for by delivering its signature page to this Amendment, shall be deemed to have accepted or been satisfied with (or waived) each condition set forth in this Section 3. The Administrative Agent shall notify the account Lenders of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Fourth Amendment Effective Date upon the occurrence thereof, and (ii) such notice and the effectiveness of this Amendment shall be conclusive and binding upon all of the Lenders and all of the other parties to the ArrangersLoan Documents and each of their successors and assigns; provided that, all failure to give any such notice shall not affect the effectiveness, validity or enforceability of this Amendment. The parties hereto hereby agree that notwithstanding any other compensation separately agreed to be paid on provision hereof, the Third Fourth Amendment Effective Date;
(g) since April 4Date is September 11, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender2024.
Appears in 1 contract
Sources: Credit Agreement (Accuray Inc)
Conditions Precedent to Effectiveness. This Third Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such datehave been fulfilled or waived prior to or concurrently herewith, each to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Third Amendment shall have been duly executed and delivered by the respective parties hereto, and the Administrative Agent shall have received each a counterpart of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the this Third Amendment Effective Date signed by each party hereto.
(or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Dateb) and The Administrative Agent shall have received duly executed supplements to each applicable Intellectual Property Security Agreement in form and substance reasonably satisfactory to the Administrative Agent (andAgent, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions with respect to all registered United States Intellectual Property created or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party acquired since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);.
(ivc) either incumbency certificates of each Loan Party The Administrative Agent shall have received a spreadsheet or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, other similar statement in form and substance reasonably satisfactory to the Administrative Agent, prepared by the Borrower, regarding the disbursement of Revolving Loan proceeds, the funding and the payment of the fees and expenses of the Administrative Agent and the Collateral Agent;Lenders (including their respective counsel), and such other matters as may be agreed to by Borrower, the Administrative Agent and the Lenders.
(viid) All necessary consents and approvals to this Third Amendment shall have been obtained.
(e) The Administrative Agent shall have received (i) a customary certificate, substantially in the form certificate of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificateeach Loan Party, dated as of the Third Amendment Effective Date, duly date hereof and executed by a Responsible Officer of Holdings such Loan Party, substantially in the form delivered on the Closing Date, with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform this Third Amendment, the Credit Agreement as amended hereby, the other Loan Documents to which such Loan Party is party and (C) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, (ii) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization, and (iii) certificates of foreign qualification for each Loan Party from each jurisdiction where the failure to be qualified could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower, dated as of the date hereof and in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) that the conditions precedent set forth specified in Sections 4(c), 4(g5.2(a) and 4(j(e) of the Credit Agreement have been satisfied as of the Third Amendment Effective Date date hereof (regardless of whether any Borrowings shall be made on the date hereof), and (B) setting forth calculations that there has been no event or circumstance since December 31, 2018, that has had or that could reasonably be expected to have, either individually or in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth aggregate, a Material Adverse Effect.
(g) The Administrative Agent shall have received an updated Collateral Information Certificate, executed by a Responsible Officer.
(h) The Administrative Agent shall have received the results of recent tax, judgment, litigation and lien searches in each jurisdiction reasonably required by the Administrative Agent, and such searches shall reveal no Liens on any of the assets of the Group Members except for Liens permitted by Section 2.12(a7.3 of the Credit Agreement or Liens to be discharged on or prior to the date hereof.
(i) The Administrative Agent shall have received updated insurance certificates satisfying the requirements of Section 6.6 of the Credit Agreement and Section 5.2(b) of the Credit Guarantee and Collateral Agreement.
(j) [Reserved].
(k) After giving pro forma effect to borrowings made on the date hereof (if any) and payment of fees and expenses relating hereto, Liquidity shall be not less than $35,000,000 on the date hereof.
(l) The Administrative Agent shall have received a solvency certificate from the chief financial officer, chief executive officer or treasurer of the Borrower, substantially in the form delivered on the Closing Date, certifying that the Borrower, after giving effect on a Pro Forma Basis to this Third Amendment and the consummation of the transactions contemplated hereby, is Solvent.
(m) No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the incurrence knowledge of any Group Member, threatened in writing, that could reasonably be expected to have a Material Adverse Effect.
(n) No Default or Event of Default shall have occurred and be continuing, both before and immediately after giving effect to the execution of this Third Amendment and the consummation of the 2018 Incremental First Lien Term Commitment;transactions contemplated hereby.
(ixo) a notice of prepayment in full After giving effect to this Third Amendment and the consummation of the Existing Term Loans pursuant to transactions contemplated hereby, the representations and warranties herein and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Agreement and the other Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Documents shall be true and correct in all material respects on and as of the respective date or for the respective periodhereof, as though made on such date (except to the extent that (i) such representations and warranties relate solely to an earlier date, in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification they shall be true and correct in all material respects (after giving effect to any or all respects if clause (ii) below is applicable) as of such qualification of materialityearlier date or (ii) such representations or warranties are qualified by materiality in the text thereof, in which case they shall be true and correct in all respects);.
(dp) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the The Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, received all fees and, to the extent required by and expenses contemplated in Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender6 hereof.
Appears in 1 contract
Sources: Credit Agreement (Sprinklr, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 shall not be effective unless and the amendments to the Credit Agreement contained in Section 3) shall become effective on the date on which until each of the following conditions precedent shall be satisfied has been fulfilled to the satisfaction of the Agent (the date of such datefulfillment, the “Third First Amendment Effective Date”):
(a) the Administrative Agent This Amendment shall have received each of been duly executed and delivered to the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, Agent by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) belowLoan Parties, the Collateral Agent):
(i) executed counterparts of this Amendment, and the Required Lenders;
(iib) resolutions or authorizations of each The Loan Party authorizing the executionParties shall have paid all reasonable and documented costs, delivery fees and performance of this Amendment and, in the case expenses of the BorrowerAgent and the Lenders, including, without limitation, the borrowings hereunder, reasonable and a certification documented fees and reasonable and documented out-of-pocket expenses of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP and DLA Piper Australia, as outside counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with incurred through the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(bc) [*], the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% representations and warranties in Section 6 of this Amendment, Section 5 of the voting Equity Interests, Loan Agreement and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) elsewhere in the Third Amendment Effective Date Representations Loan Documents shall be true true, correct and correct as of the Third Amendment Effective Date complete in all material respects (except unless such representations are already qualified by reference to materiality, Material Adverse Effect or similar language, in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation representations and warranty warranties shall be true and correct in all material respects respects) on and as of the respective date or for hereof with the respective periodsame effect as though made on and as of such date, as except to the case may be)extent such representations and warranties expressly relate to an earlier date; provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and
(d) At the time of and correct in all respects (after giving effect to any such qualification of materiality);
this Amendment, (di) the Borrower shall have appliedno fact or condition exists that could (or could, concurrently with the making passage of the 2018 Incremental First Lien Term Loantime, the proceeds giving of the 2018 Incremental First Lien Term Loan notice, or both) constitute an Event of Default and (ii) no event that has had or could reasonably be expected to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;have a Material Adverse Effect has occurred and is continuing.
(e) the Administrative The Agent shall have received, in form and substance satisfactory to the Agent:
(i) at least three Business Days prior to certified copies of the Third constitutional documents and the bylaws, as amended through the First Amendment Effective Date, of each Loan Party;
(ii) a certificate of good standing (or foreign equivalent or insolvency search, as applicable) for each Loan Party from its jurisdiction of organization and similar certificates from all documentation other jurisdictions in which it does business and where the failure to be qualified could have a Material Adverse Effect;
(iii) certified copies of resolutions (or, in the case of Parent, an extract thereof) of each of the Loan Parties’ respective Boards of Directors (and shareholder with respect to Mesoblast UK and quotaholder with respect to Mesoblast SUI) evidencing (i) approval of this Amendment and other information required transactions evidenced by regulatory authorities this Amendment and the Amendment Documents; (ii) authorizing the issuance of the First Amendment Warrants; (iii) authorizing a specified person or persons to execute this Amendment and the Amendment Documents; and (iv) (with respect to Parent and Mesoblast UK) (A) including a statement of corporate benefit; (B) acknowledging that the Board of Directors are acting for a proper purpose and that this Amendment and the Amendment Documents are in the best interests of that Loan Party and for its commercial benefit; and (C) acknowledging that the relevant Loan Party was solvent and there were reasonable grounds to expect that the relevant Loan Party would continue 4856-2614-8927 v.7 to be solvent after executing this Amendment and complying with its obligations under applicable “know your customer” the Amendment Documents and anti-money laundering rules and regulations, including the PATRIOT Act, other Loan Documents;
(iv) a legal opinion of the Loan Parties’ U.S. counsel dated as is reasonably requested in writing by of the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(iiv) for the account of each Lender (a perfection certificate and disclosure letter supplement, dated as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet signed by an officer of Parent, in form and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect substance satisfactory to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAgent.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall ------------------------------------- become effective on and as of the first date (the "Effective Date") on which the -------------- following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) The Borrower shall have paid all fees and expenses of the Administrative Agents and the Lenders payable hereunder and accrued as of the Effective Date (including the accrued fees and expenses of counsel to the Agents).
(b) On the Effective Date, the following statements shall be true and the Funding Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Funding Agent shall have received on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and (and, except for the Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts The Notes payable to the order of this Amendment;each of the Lenders, in a principal amount equal to each such Lender's Commitment.
(ii) Certified copies of the resolutions of the Board of Directors (or authorizations committee thereof) of the Borrower and each other Loan Party approving this Agreement, the Notes and the Guaranty to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Agreement, the Notes and the Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan Party authorizing certifying the execution, delivery names and performance of this Amendment and, in the case true signatures of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents officers of such Loan Party since authorized to sign the Closing Date, Loan Documents to which it is a party and the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);other documents to be delivered hereunder.
(iv) either incumbency certificates A guaranty in substantially the form of Exhibit E (as amended, supplemented or otherwise modified from time to time, the "Guaranty"), duly -------- executed by each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;Guarantor.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇Bird, LLP, counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as any Lender through the Agents may reasonably request.
(vi) An opinion of Ashurst ▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia English counsel to for the Loan PartiesBorrower, in each case dated substantially the Third Amendment Effective Dateform of Exhibit G hereto and as to such other matters as any Lender through the Agents may reasonably request.
(vii) An opinion of Shearman & Sterling, addressed to counsel for the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the LendersAgents, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);Agents.
(d) the Borrower shall have applied, concurrently with the making The termination of the 2018 Incremental First Lien Term Loancommitments of the lenders and the payment in full of all amounts outstanding under the Amended and Restated Credit Agreement dated December 17, 1997 among the Borrower, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Datelenders parties thereto, all documentation Citibank, N.A. and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsNationsBank, including the PATRIOT ActN.A., as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any lossco-syndication agents, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreementand The Chase Manhattan Bank, which are hereby waived).
(f) there shall have been paid (i) to the Administrative AgentSunTrust Bank, for the account of the Administrative Agent Atlanta and the Lenders (including the 2018 Incremental First Lien Lender)Wachovia Bank, N.A., as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendermanaging agents.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 Agreement and the amendments obligations of the Lenders to extend the Credit Agreement contained in Section 3) Initial Term Loan shall become effective on and as of the first date on which each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies or electronic transmission of pdf formatted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Collateral Agent):Required Lenders:
(i) this Agreement duly executed counterparts of this Amendment;
(ii) resolutions or authorizations of by each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderAgent and the Lenders.
(ii) the Security Documents (including, without limitation, the Guarantee and a certification of a Responsible Officer of Collateral Agreement), each duly executed by the applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either all other Loan Documents, each duly executed by the Organization Documents of each applicable Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Parties;
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, one or more special or local counsel to the Loan Parties Borrower and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and each Lender as to such matters as the Collateral AgentAgent may reasonably request;
(vii) a customary certificatecertificate signed by an Authorized Officer of the Borrower certifying (A) that the conditions specified in clauses (c), substantially in the form of Exhibit J (h) and (n) below have been satisfied, (B) to the Credit Agreement from Solvency of the chief financial officer Loan Parties, taken as a whole, as of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis the Effective Date after giving effect to the Transactionstransactions contemplated hereby, are Solvent; and
and (viiiC) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Perfection Certificate is true and correct in all material respects respects;
(viii) evidence that all insurance required to be maintained pursuant to Section 5.01(c) has been obtained and is in effect;
(ix) A Borrowing Base Certificate, duly completed and executed by an Authorized Officer of the Borrower, together with supporting information satisfactory to the Agent in its Permitted Discretion, and dated as of March 20, 2017.
(x) results of searches or other evidence reasonably satisfactory to the respective Agent (in each case dated as of a date or reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified Liens permitted by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialitySection 5.02(a);
(dxi) results of such other diligence as the Borrower shall have applied, concurrently with the making Agent and each of the 2018 Incremental First Lien Term LoanLenders may reasonably require, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable including compliance with “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Proceeds of Crime Act, as is reasonably requested in writing ;
(xii) duly executed Credit Card Notifications and Blocked Account Agreements required pursuant to Section 4.01(m);
(xiii) [reserved];
(xiv) (A) appraisals (based on net liquidation value) by the Administrative Agent at least ten (10) business days prior a third party appraiser acceptable to the Third Amendment Effective DateAgent (it being understood that Tigger Appraisal Services is an acceptable third party appraiser) of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xv) a duly executed agreement from each Subsidiary of the Borrower which is not a Loan Party and which owns any real estate constituting a warehouse or DC that houses collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Agent a rent-free or royalty-free (as applicable) license to use such real estate and Related Intellectual Property in connection with the Agent’s enforcement of its remedies under the Loan Documents with respect to the Collateral, during the occurrence and continuation of an Event of Default; and
(xvi) the Intercreditor Agreement shall have been executed by each party thereto;
(xvii) the ABL Credit Agreement shall have been amended in form and substance satisfactory to the Agent (which amendment shall contain, among other things, a release by the Agent under the ABL Credit Agreement of personal property Liens granted by the Loan Parties in favor of such agent in real property mortgages or debentures or immovable hypothec prior to the date of this Agreement);
(xviii) such other customary certificates, documents or consents as the Agent reasonably may require.
(b) All actions required by law or reasonably requested by the Agent to be undertaken, and all documents and instruments, including PPSA financing statements, required by law or reasonably requested by the Agent to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent.
(c) The representations and warranties made by each Loan Party in or pursuant to the Loan Documents are true and correct on and as of such date in all material respects, before and after giving effect to such extension of credit and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent that (i) such representations or warranties are qualified by a materiality standard, in which case they shall be true and correct in all respects and (ii) such representations or warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).
(d) The Agent shall have received a detailed forecast for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid period commencing on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 and ending with the end of the Credit Agreementthen next fiscal year, which are hereby waived)shall include an availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(e) The Loan Parties’ capital, structure and liquidity shall be reasonably acceptable to the Agent.
(f) there The Loan Parties’ accounts payable shall be within stated invoice terms as of the Effective Date, or as permitted in the ordinary course of the Borrower’s business consistent with past practices.
(g) [reserved].
(h) There shall have been no event or circumstance since January 28, 2017 that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(i) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) All fees required to be paid to the Agent on or before the Effective Date shall have been paid (i) in full, and all fees required to be paid to the Administrative Agent, for Lenders on or before the account Effective Date shall have been paid in full.
(k) The Borrower shall have paid all costs and expenses of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by set forth in Section 10.04 of 8.04(a)) incurred in connection with or relating to this Agreement and the Credit Agreementother Loan Documents, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable counsel to the Agent, to the extent invoiced prior to or on or before the Third Amendment Effective Date (provided that such payment shall not thereafter preclude a final settling of accounts between the Borrower and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;Agent).
(gl) since April 4, 2018, there No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days occurred prior to the Third Amendment Effective Date.
(m) All of Borrower’s material accounts payable are within stated invoice terms as of the Effective Date, or as permitted in the ordinary course of Borrower’s business consistent with past practices.
(n) No event has occurred and (c) a pro forma consolidated balance sheet and related statement is continuing, or would result from such extension of income credit or from the application of the Borrower as proceeds therefrom, that constitutes a Default or an Event of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderDefault.
Appears in 1 contract
Sources: Credit Agreement (Sears Canada Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments is subject to the Credit Agreement contained in Section 3satisfaction (or waiver) shall become effective on of the following conditions precedent (the date on which the following all such conditions precedent shall be are satisfied (such dateor waived), the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly counterparts to this Amendment executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderGuarantors, each of the Lenders and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectthe Administrative Agent;
(iiib) either the Administrative Agent shall have received an officer’s certificate dated the Amendment Effective Date, certifying as to the Organization Documents of each Loan Party (which, subject to Section 8(c), to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party, the good standing, existence or a certification by a Responsible Officer its equivalent of each Loan Party that there have been no changes to and of the Organization Documents incumbency (including specimen signatures) of such the Responsible Officers of each Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Party;
(ivc) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers except as set forth on in Section 8(a) of this Amendment, the incumbency certificates Administrative Agent shall have received opinions of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to for the Loan Parties, in each case dated the Third Amendment Effective Date, Date and addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender Agent and the Lenders, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Collateral Agent;
(viid) a customary certificate, substantially in the form no Event of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings Default shall have occurred and its Subsidiaries, on a consolidated basis be continuing or would result after giving effect to the Transactions, are Solvent; andthis Amendment;
(viiie) a certificate, dated each of the representations and warranties contained in Article V of the Credit Agreement (as amended hereby) and the other Loan Documents is true and correct in all material respects on and as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one except (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interestsextent that such representations and warranties specifically refer to an earlier date, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be they are true and correct in all material respects as of the respective date such earlier date, (2) as to any such representation or for the respective period, warranty that is qualified as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, materiality,” “material adverse changeMaterial Adverse Effect,” or similar term language, such representation or qualification warranty shall be true and correct in all respects (after giving effect to any such qualification therein) in all respects and (3) the representations and warranties contained in subsections (a) and (b) of materialitySection 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(df) the Borrower shall have appliedpaid in full all fees and expenses (including all reasonable and documented fees, concurrently with expenses and disbursements of counsel to the making Administrative Agent, directly to such counsel if requested by the Administrative Agent) due and payable to the Administrative Agent or its affiliates (including all upfront fees and other fees payable to the Administrative Agent for the account of itself and for the account of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective DateLenders);
(eg) receipt by the Administrative Agent shall have received:
(i) at least three Business Days prior to and the Third Amendment Effective Date, Lenders of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act, as is reasonably the Beneficial Ownership Regulation, that has been requested in writing by the Administrative Agent at least ten (10) business days not less than five Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(gh) since April 4except as set forth in Section 8(b) of this Amendment, 2018, there the Administrative Agent shall have been no Material Adverse Effect received, in form and substance reasonably satisfactory to the Administrative Agent: (as defined A) searches of UCC filings or equivalents in the Acquisition Agreement);
(h) jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined Administrative Agent’s security interest in the Acquisition Agreement) for Collateral, copies of the fiscal year ended financing statements on December 31, 2017file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, (bB) an unaudited consolidated statement tax lien, judgment and bankruptcy searches and (C) searches of financial position, consolidated statements ownership of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined Intellectual Property in the Acquisition Agreement) for each fiscal quarter appropriate governmental offices and such patent/trademark/copyright and other filings as reasonably requested by the Administrative Agent in order to perfect or confirm perfection of Master LP and the Subsidiaries (as such terms are defined Administrative Agent’s security interest in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);Intellectual Property; and
(i) prior tosuch other assurances, certificates, documents, information, or substantially concurrently consents as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require. Without limiting the generality of the provisions of Section 9.03(c) of the Credit Agreement, for purposes of determining compliance with the initial funding of the 2018 Incremental First Lien Term Loanconditions specified in this Section 3, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto each Lender that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) has signed this Amendment shall be deemed materially adverse to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAmendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, has been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly a fully executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) copy hereof and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings other document required hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;.
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;[Reserved].
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the The Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) [reserved], (ii) paid all expenses and reimbursements pursuant to Section 10 hereof, to the extent provided to the Borrower at least three (3) Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” (iii) [reserved], it being understood and anti-money laundering rules and regulations, including agreed that the PATRIOT Act, as is reasonably requested in writing by Borrower hereby authorizes the Administrative Agent at least ten to pay all such fees and expenses pursuant to this clause (10c) business days prior by debiting such amounts from the Deposit Accounts of the Borrower maintained with SVB and payment of the same from such proceeds shall satisfy this clause (c).
(d) [Reserved].
(e) All material Governmental Approvals and consents and approvals of, or notices to, shall have been obtained and be in full force and effect (or waived, and if such waiver is materially adverse to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 interests of the Credit AgreementLenders, which are hereby waivedwith the consent of the Administrative Agent).
(f) there Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been paid (i) to the Administrative Agent, for the account true and correct in all material respects as of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on such earlier date or before the Third Amendment Effective Date and (ii) to such representations and warranties are qualified by materiality in the Arrangerstext thereof, in which case they shall be true and correct in all other compensation separately agreed to be paid on the Third Amendment Effective Date;respects.
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after Upon giving effect to the Transactions as if the Transactions had occurred as this Amendment, no Default or Event of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing Default shall have been consummated occurred and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendercontinuing.
Appears in 1 contract
Sources: Credit Agreement (Appian Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date on which each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies or electronic transmission of pdf formatted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Collateral Agent):Required Lenders:
(i) this Agreement duly executed counterparts of this Amendment;
(ii) resolutions or authorizations of by each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunderAgent, the Co-Collateral Agents, the L/C Issuing Bank and a certification of a Responsible Officer of the Lenders.
(ii) the Security Documents (including, without limitation, the Guarantee and Collateral Agreement), each duly executed by the applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either all other Loan Documents, each duly executed by the Organization Documents of each applicable Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Parties;
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, one or more special or local counsel to the Borrower and the other Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Dateother than Quebec counsel), addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and each Lender as to such matters as the Collateral AgentAgent may reasonably request;
(vii) a customary certificatecertificate signed by an Authorized Officer of the Borrower certifying (A) that the conditions specified in Section 4.03 have been satisfied, substantially in the form of Exhibit J (B) to the Credit Agreement from Solvency of the chief financial officer Loan Parties, taken as a whole, as of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis the Effective Date after giving effect to the Transactionstransactions contemplated hereby, are Solvent; and
and (viiiC) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be Perfection Certificate is true and correct in all material respects respects;
(viii) evidence that all insurance required to be maintained pursuant to Section 6.01(c) has been obtained and is in effect;
(ix) A Borrowing Base Certificate, duly completed and executed by an Authorized Officer of the Borrower, together with supporting information satisfactory to the Agent in its Permitted Discretion, and dated as of August 1, 2010.
(x) results of searches or other evidence reasonably satisfactory to the respective Agent (in each case dated as of a date or reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified Liens permitted by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialitySection 6.02(a);
(dxi) results of such other diligence as the Borrower shall have applied, concurrently with the making Agent and each of the 2018 Incremental First Lien Term LoanLenders may reasonably require, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable including compliance with “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Proceeds of Crime Act;
(xii) duly executed Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.01(m);
(xiii) a duly executed agreement from each Subsidiary of the Borrower which is not a Loan Party and which owns any real estate constituting a warehouse or DC that houses collateral or owns Related Intellectual Property, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior pursuant to which each such Subsidiary grants to the Third Amendment Effective DateAgent a rent-free or royalty-free (as applicable) license to use such real estate and Related Intellectual Property in connection with the Agent’s enforcement of its remedies under the Loan Documents with respect to the Collateral, during the occurrence and continuation of an Event of Default; and
(iixiv) such other customary certificates, documents or consents as the Agent reasonably may require.
(b) All actions required by law or reasonably requested by the Agent to be undertaken, and all documents and instruments, including PPSA financing statements, required by law or reasonably requested by the Agent to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent.
(c) Excess Availability on the Effective Date shall be equal to or greater than CAN$300,000,000.
(d) The Agent shall have received a detailed forecast for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid period commencing on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 and ending with the end of the Credit Agreementthen next fiscal year, which are hereby waived)shall include an availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(e) The Loan Parties’ capital structure shall be reasonably acceptable to the Agent.
(f) there The Loan Parties’ accounts payable shall be within stated invoice terms as of the Effective Date, or as permitted in the ordinary course of the Borrower’s business consistent with past practices.
(g) The conditions set forth in Section 4.03 shall have been satisfied.
(h) There shall have been no event or circumstance since January 30, 2010 that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(i) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) All fees required to be paid to the Agent, any Arranger or any Co-Collateral Agent on or before the Effective Date shall have been paid (i) in full, and all fees required to be paid to the Administrative Agent, for Lenders on or before the account Effective Date shall have been paid in full.
(k) The Borrower shall have paid all costs and expenses of the Administrative Agent and the Lenders Co-Collateral Agents (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by set forth in Section 10.04 of 9.04(a)) incurred in connection with or relating to this Agreement and the Credit Agreementother Loan Documents, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due counsel to the Agent and payable the Co-Collateral Agents, to the extent invoiced prior to or on or before the Third Amendment Effective Date (provided that such payment shall not thereafter preclude a final settling of accounts between the Borrower and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;Agent).
(gl) since April 4, 2018, there No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days occurred prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Sears Canada Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligations of each Term Lender to fund its respective Loans shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (the first Business Day on which such dateconditions precedent are so satisfied, the “Third Amendment Effective Closing Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement and each of the other Loan Documents requested by the Agent from the Borrower, each other Loan Party party thereto, each Lender as of the Closing Date and the Agent.
(b) The Administrative Agent shall have received each of on or before the Closing Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts A certificate of this Amendment;
(ii) resolutions the Secretary or authorizations Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance [[NYCORP:3664832v12::08/15/2017--08:07 PM]] of this Amendment the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunderBorrowing under the Facilities, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) either Certified copies of the Organization Documents certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Closing Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certification by a Responsible Officer certificate as to the good standing (where such concept is applicable) of each Loan Party that there have been no changes to the Organization Documents as of a recent date, from such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date Secretary of State (as applicableor comparable authority);.
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties Borrower and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated as of the Third Amendment Effective Closing Date, addressed to the Administrative Agent, the each Collateral Agent, the 2018 Incremental First Lien Agent and each Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Collateral Agent;Loan Documents and the Transactions as the Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(viiv) a customary certificateAny Notes, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) extent requested at least three Business Day Days prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered Closing Date by any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the Third Amendment Effective Date form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of each of Holdings and the Borrower in the form attached hereto as Exhibit F-1 and Exhibit F-2, respectively.
(e) The Spinco Internal Reorganization and the Spinco Transfer shall have been consummated in all material respects or shall be consummated in all material respects substantially contemporaneously with the initial funding of the Facilities in all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement, and the Spinco Distribution and the Spinco Acquisition (and the Spinco Merger) shall have been consummated, or shall be consummated on the Closing Date, in all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement (in each case without (A) any waiver of a closing condition by Spinco or any of its Affiliates, (B) any waiver of any kind (other than a waiver of the type described in the foregoing clause (A)) by any Person or (C) any amendment, modification or supplement thereof by any Person or any consent or election thereunder by any Person (any one of the foregoing, a “Modification”) that, in any such case, is material and adverse to the Arrangers or the Lenders (in each case, in their capacities as such) without the prior written consent of the Arrangers) (it being understood and agreed that any Modification that results in (y) any increase in the amount of the Leidos Special Dividend from $1,029,210,261 shall be deemed to be materially adverse to the Lenders and the Arrangers or (z) an increase in the amount of the Spinco Special Cash Payment of [[NYCORP:3664832v12::08/15/2017--08:07 PM]] greater than 10% from $1,800,000,000 shall be deemed to be materially adverse to the Lenders and the Arrangers). The Acquisition Agreement, the Spinco Separation Agreement and all other related documentation shall be in form and substance reasonably satisfactory to the Arrangers; provided that (x) the Acquisition Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers and (y) the Spinco Separation Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers. The Acquisition Agreement Representations shall be true and correct as of and the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Specified Representations shall be true and correct in all material respects as of the respective date (or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialityif separately qualified by materiality or Material Adverse Effect);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the . The Administrative Agent shall have received:
(i) at least three Business Days prior to received a certificate, dated the Third Amendment Effective Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account from a Financial Officer of each Lender (as defined in of Holdings and the Credit Agreement) Borrower certifying compliance with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under this Section 3.05 of the Credit Agreement, which are hereby waived3.01(e).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The parties hereto agree that this Amendment shall not be effective until the satisfaction (including or waiver by the agreements in Section 2 Administrative Agent and the amendments to the Credit Agreement contained in Section 3Existing Lenders) shall become effective on the date on which of each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance copy of this Amendment andduly completed, in executed and delivered by the case of the BorrowerExisting Lenders, the borrowings hereunder, Borrower and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower Administrative Agent shall have delivered any pledged stock (or equivalent) certificates evidencing 65% receive evidence of concurrent consummation of a related amendment to the voting Equity InterestsParent Revolving Credit Agreement, which shall be in form and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporationsubstance reasonably acceptable to the Administrative Agent;
(c) the Third Amendment Effective Date Representations Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Existing Revolving Credit Agreement, which shall be true in form and correct substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to that certain Senior Secured Credit Agreement, dated as of September 28, 2023 (and as amended, restated, supplemented or otherwise modified from time to time), by and among the Third Parent, the lenders from time to time party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) each of the representations and warranties made in this Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as of the respective date to "materiality" or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification "Material Adverse Effect" shall be true and correct in all respects respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to any the amendments contemplated by this Amendment as if such qualification representations and warranties were being made on and as of materialitythe Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(ef) the Administrative Agent shall have received:received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party and such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(g) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least two (2) Business Days prior to the Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel) and (ii) all other compensation required to be paid on or prior to the Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Third Amendment Effective Date, the Lead Arrangers (as defined in the Engagement Letter) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct and a Beneficial Ownership Certification in relation to the Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, as that is reasonably requested in writing by the Administrative Agent at least ten (10) business days Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Senior Term Loan Credit Agreement (United States Cellular Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) ------------------------------------- shall become effective on and as of the first date (the "Effective Date") on -------------- which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):have been satisfied:
(a) The Borrower shall have paid all fees and expenses of the Administrative Agents and the Lenders payable hereunder and accrued as of the Effective Date (including the accrued fees and expenses of counsel to the Agents).
(b) On the Effective Date, the following statements shall be true and the Funding Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Funding Agent shall have received on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and (and, except for the Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts The Notes payable to the order of this Amendment;each of the Lenders, in a principal amount equal to each such Lender's Commitment.
(ii) Certified copies of the resolutions of the Board of Directors (or authorizations committee thereof) of the Borrower and each other Loan Party approving this Agreement, the Notes and the Guaranty to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Agreement, the Notes and the Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan Party authorizing certifying the execution, delivery names and performance of this Amendment and, in the case true signatures of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents officers of such Loan Party since authorized to sign the Closing Date, Loan Documents to which it is a party and the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);other documents to be delivered hereunder.
(iv) either incumbency certificates A guaranty in substantially the form of Exhibit E (as amended, supplemented or otherwise modified from time to time, the "Guaranty"), duly executed by each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;Guarantor.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable An opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇Bird, LLP, counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as any Lender through the Agents may reasonably request.
(vi) An opinion of Ashurst ▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia English counsel to for the Loan PartiesBorrower, in each case dated substantially the Third Amendment Effective Dateform of Exhibit G hereto and as to such other matters as any Lender through the Agents may reasonably request.
(vii) An opinion of Shearman & Sterling, addressed to counsel for the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the LendersAgents, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);Agents.
(d) the Borrower shall have applied, concurrently with the making The termination of the 2018 Incremental First Lien Term Loancommitments of the lenders and the payment in full of all amounts outstanding under the Amended and Restated Credit Agreement dated December 17, 1997 among the Borrower, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Datelenders parties thereto, all documentation Citibank, N.A. and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsNationsBank, including the PATRIOT ActN.A., as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any lossco-syndication agents, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreementand The Chase Manhattan Bank, which are hereby waived).
(f) there shall have been paid (i) to the Administrative AgentSunTrust Bank, for the account of the Administrative Agent Atlanta and the Lenders (including the 2018 Incremental First Lien Lender)Wachovia Bank, N.A., as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendermanaging agents.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date on which the following conditions precedent shall be have been satisfied (such date, the “Third Amendment Effective Date”):
(a) The Borrower shall have paid all accrued fees and, to the extent invoiced at least two Business Days prior to the Effective Date, expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses of counsel to the Administrative Agent), in each case to the extent payable pursuant to the Engagement Letter.
(b) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are (1) with respect to representations and warranties that contain a materiality qualification in Section 4.01, true and correct and (2) with respect to all other representations and warranties, true and correct in all material respects, in each case, on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of this Amendment;The Notes to the Lenders, to the extent requested by any Lender at least three Business Days before the Effective Date.
(ii) Certified copies of (1) the resolutions of the board of directors (or authorizations equivalent governing body) of each Loan Credit Party authorizing the execution, delivery and performance of approving this Amendment Agreement and, in to the case of the Borrowerextent applicable, the borrowings hereunderother Loan Documents, and a certification of a Responsible Officer all documents evidencing other necessary corporate or other action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents, (2) the articles of incorporation or other charter documents, as applicable, of each Loan Credit Party that such resolutions have not been modifiedand (3) the bylaws or comparable operating agreement, rescinded or amended and are in full force and effect;as applicable, of each Credit Party.
(iii) either Certificates of good standing, existence or its equivalent with respect to each Credit Party certified as of a recent date by the Organization Documents appropriate governmental authorities of the state of incorporation or organization and each Loan Party or other state in which the failure to so qualify and be in good standing would reasonably be expected to have a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);Material Adverse Effect.
(iv) either incumbency certificates A certificate of the Secretary or an Assistant Secretary of each Loan Credit Party or a certification by a Responsible Officer certifying the names and true signatures of the officers of such Credit Party authorized to sign each Loan Party that there have been no changes Document to which it is a party and the Responsible Officers set forth on the incumbency certificates of such Loan Party other documents to be delivered on the Second Amendment Effective Date;by it hereunder.
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of each of (xi) FriedCravath, Frank, Harris, ▇▇▇▇▇▇▇ Swaine & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to for the Loan Parties Borrower and (yii) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) Latham, Shuker, Eden & Beaudine, LLP, special Georgia Florida counsel to for the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the LendersBorrower, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;.
(viivi) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from An officer’s certificate prepared by the chief financial officer of Holdings, certifying that Holdings the Borrower as to the solvency of the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as effectiveness of this Agreement on the Third Amendment Effective Date, duly executed by a Responsible Officer in substantially the form of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);Exhibit G hereto.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the The Administrative Agent shall have received:
(i) received at least three five Business Days prior to the Third Amendment Effective Date, Date all documentation and other information about the Borrower and the other Credit Parties as has been reasonably requested in writing at least 10 Business Days prior to the Effective Date by the Administrative Agent that it (on behalf of itself and the Lenders) reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(fe) there shall have been paid (i) to the Administrative AgentSince December 31, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender)2014, as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderhas occurred.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments shall be subject to the Credit Agreement contained in Section 3) shall become effective on satisfaction or waiver of only the following conditions precedent (first the date on which the following such conditions precedent shall be are so satisfied (such dateor waived, the “Third Sixth Amendment Effective Date”):
(ai) the Borrower, the Administrative Agent, each Issuing Lender and each Lender with a Commitment on the Sixth Amendment Effective Date (after giving effect thereto)shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile, pdf or other electronic transmission) the same to the Administrative Agent;
(ii) the Administrative Agent shall have received each a favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the followingBorrower, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory addressed to the Administrative Agent (and, in and each of the case of clause (vi) below, Lenders party to this Amendment on the Collateral Agent):
(i) executed counterparts of Sixth Amendment Effective Date and dated the Sixth Amendment Effective Date covering such matters incidental to this AmendmentAmendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iiiii) the Administrative Agent shall have received (A) true and complete copies of resolutions or authorizations of each Loan Party the board of directors of the Borrower approving and authorizing the execution, delivery and performance of this Amendment andand the Amended Credit Agreement, in the case certified as of the Borrower, Sixth Amendment Effective Date by an Authorized Representative of the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are Borrower as being in full force and effect;
effect without modification or amendment and (iiiB) either a certificate of existence for the Organization Documents Borrower as of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to recent date from the Organization Documents of such Loan Party since jurisdiction in which the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)Borrower is organized;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as all of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) representations and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans warranties made pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty 5 hereof shall be true and correct in all material respects on the Sixth Amendment Effective Date, both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the respective date or for the respective period, as the case may be); provided, that any Third Sixth Amendment Effective Date Representation (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified by or subject as to a “material adverse effect”, materiality,” “material adverse changeMaterial Adverse Effect” or similar term or qualification language shall be true and correct in all respects on such specified date);
(v) both before and immediately after giving effect to the Reallocation and the occurrence of the Sixth Amendment Effective Date, since December 31, 2016, nothing shall have occurred (and neither the Administrative Agent nor the Lenders shall have become aware of any such qualification of materiality)facts or conditions not previously known) which the Administrative Agent or the Lenders shall determine has had, or could reasonably be expected to have, a Material Adverse Effect;
(dvi) the Borrower shall have appliedpaid all reasonable and documented out-of-pocket costs, concurrently with the making fees, expenses of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) required to be paid or reimbursed pursuant to Section 13.01 of the Amended Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent, in each case, invoiced at least three Business Days prior to the Third date hereof, and other amounts due and owing on the Sixth Amendment Effective Date pursuant to the Fee Letter, dated October 27, 2017, among the Borrower, the Administrative Agent and Deutsche Bank Securities Inc.;
(vii) the Borrower shall have paid (or cause to have been paid) on the Sixth Amendment Effective Date to the Administrative Agent for the account of each Lender party hereto, a one-time amendment fee (the “Amendment Fee”) in an amount, with respect to each Lender, equal to three basis points (0.03%) on existing Loans and Commitments under the Existing Credit Agreement that are converted into new Loans and/or Commitments under the Amended Credit Agreement and seven and one-half basis points (0.075%) on new or additional Loans and Commitments provided under the Amended Credit Agreement. The Amendment Fee will be paid on the aggregate amount of final allocations of commitments of each Lender and is payable in Dollars;
(viii) the Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit H to the Existing Credit Agreement, which shall be addressed to the Administrative Agent and the Lenders and dated the Sixth Amendment Effective Date, setting forth the conclusions that, immediately after giving effect to the transactions contemplated in this Amendment and the incurrence of the financings contemplated hereby, each of the Borrower and the Borrower and its Subsidiaries, taken as a whole, is or are not insolvent and will not be rendered insolvent, and will not be left with unreasonably small capital with which to engage in its or their businesses and will not have incurred debts beyond its or their ability to pay such debts as they mature;
(ix) the Administrative Agent shall have received a written certification by an Authorized Officer of the Borrower certifying that the conditions precedent specified in Section 4(iv), (v) and (x) have been satisfied;
(x) both immediately before and also immediately after giving effect to the transactions contemplated hereunder and the incurrence and application of the Revolving Loans on the Sixth Amendment Effective Date and the effectiveness of the Amendments, there shall exist no Default or Event of Default (with each of such terms being defined in a manner consistent with the manner in which they are defined in the Amended Credit Agreement) under the Amended Credit Agreement; and
(xi) the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, as is that has been reasonably requested in writing by the Administrative Agent Lead Arranger at least ten five (105) business days prior to in advance of the Third Sixth Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the first date (the “Second Amendment to Second Amended and Restated Credit Agreement Effective Date”) on which all the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):are satisfied:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto, including Lenders constituting the “Required Revolving Lenders” under and as defined in the Existing Credit Agreement, a counterpart of this Amendment signed on behalf of such party. |
(b) The Administrative Agent shall have received each a reaffirmation agreement in respect of the followingSecurity Agreement, executed and delivered by each Loan Party and in form and substance reasonably acceptable to the Administrative Agent.
(c) Both prior to and after giving effect to this Amendment, no Default or Event of which Default shall have occurred and be continuing on the Second Amendment to Second Amended and Restated Credit Agreement Effective Date.
(d) As of the Second Amendment to Second Amended and Restated Credit Agreement Effective Date (both prior to and after giving effect to this Amendment) all representations and warranties contained in Section 3 of this Amendment and in Article 3 of the Existing Credit Agreement shall be originals or facsimiles true and correct in all material respects, except that (followed promptly by originalsi) unless otherwise specifiedfor purposes of this clause (d), each properly executed by a Responsible Officer the representations and warranties contained in Section 3.04(a) of the signing Loan Party andExisting Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished pursuant to clause (i) belowb), by to year-end audit adjustments and the 2018 Incremental First Lien Lenderabsence of footnotes), each dated as respectively, of Section 5.01 of the Third Amendment Effective Date (orExisting Credit Agreement, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing to the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party extent that such resolutions have not been modifiedrepresentations and warranties specifically refer to an earlier date, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty they shall be true and correct in all material respects as of such earlier date and (iii) to the respective date extent that such representations and warranties are already qualified or for modified by materiality in the respective periodtext thereof, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification they shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;respects.
(e) The Lenders party hereto and the Administrative Agent shall have received:
(i) received on or before the Second Amendment to Second Amended and Restated Credit Agreement Effective Date payment of all expenses required to be reimbursed by the Borrower for which invoices have been presented at least three two (2) Business Days prior to the Third Second Amendment to Second Amended and Restated Credit Agreement Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (Peloton Interactive, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the first date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):) on which all the following conditions are satisfied:
(a) the The Administrative Agent (or its counsel) shall have received from each party hereto, including Lenders constituting the “Required Lenders” under and as defined in the Existing Credit Agreement, a counterpart of this Amendment signed on behalf of such party.
(b) Immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date.
(c) The representations and warranties contained in Section 3 of this Amendment and in Article 3 of the following, each of which Existing Credit Agreement shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer true and correct in all material respects on and as of the signing Loan Party anddate hereof, except that (i) for purposes of this Section 2(c), the representations and warranties contained in Section 3.04(a) of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a) or Section 5.01(b) of the Existing Credit Agreement (subject, in the case of clause (iunaudited financial statements furnished pursuant to Section 5.01(b) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (orExisting Credit Agreement, in to year-end audit adjustments and the case absence of certificates of governmental officialsfootnotes), a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations to the extent that such representations and warranties in Article 3 of each Loan Party authorizing the execution, delivery and performance of this Amendment and, Existing Credit Agreement specifically refer to the “Effective Date” (as defined in the case of the BorrowerExisting Credit Agreement), the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes other than with respect to the Organization Documents of Section 3.13, such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes references shall be deemed to refer to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation and (iii) to the extent that such representations and warranties are already qualified or modified by materiality or subject to a “material adverse effect”words of similar effect in the text thereof, “material adverse change” or similar term or qualification they shall be true and correct in all respects (after giving effect to any such qualification of materiality);respects.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) The Lenders party hereto and the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable received on or before the Third Amendment Effective Date and payment of all expenses required to be reimbursed by the Borrower under the Loan Documents for which invoices have been presented at least one (ii1) Business Day prior to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Amendment (including the agreements in Section 2 and the amendments obligations of the Administrative Agent, the Collateral Agent, the RL Lenders, the 2016 Term Loan Lenders and the Required Lenders to enter into this Amendment are subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction or waiver of the following conditions precedent shall be satisfied (such date, on or prior to the “Third Second Amendment Effective Date”)::
(a) the Administrative Agent shall have received each of an executed original (or photocopy with the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of original to follow after the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Second Amendment Effective Date) and each of (i) the Amendment, (ii) a solvency certificate from a Financial Officer of Holdings or the Borrower, substantially in the form and substance reasonably satisfactory of Exhibit H hereto, (iii) a patent security agreement substantially in the form of Exhibit D to the Guarantee and Collateral Agreement, (iv) the Revolving Note(s) and (v) the Term Note(s) evidencing the 2016 Term Loans;
(b) The Administrative Agent (and, in shall have received the case of clause (vi) below, following from or with respect to Holdings and the Collateral Agent):Borrower:
(i) executed counterparts a copy of this Amendment;the certificate or articles of incorporation or organization, including all amendments thereto, certified as of a recent date by either the Secretary of State of the state of its organization or such Governmental Authority, and, to the extent readily available with respect to franchise Taxes, a certificate certifying that such Loan Party has paid all franchise Taxes due and payable on or prior to the date of such certificate and such Loan Party is duly organized and in good standing under the laws of such jurisdiction; [***] = CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
(ii) resolutions a certificate of the Secretary, Assistant Secretary or authorizations other Responsible Officer of each Loan Party dated the Second Amendment Effective Date and certifying (A) that attached thereto are true and complete copies of the Organizational Documents of such Loan Party as in effect on the Second Amendment Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Governing Body of such Loan Party authorizing the execution, delivery and performance of this Amendment the Loan Documents and, in the case of the Borrower, the borrowings borrowing of the 2016 Term Loans hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;, (C) that the charter or articles or certificate of incorporation or organization of such Loan Party have not been amended since the date thereof, and (D) as to the incumbency and specimen signature of each officer executing any Loan Documents or any other document delivered in connection herewith on behalf of such Loan Party; and
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes another officer as to the Organization Documents incumbency and specimen signature of such Loan Party since the Closing Date, Secretary or Assistant Secretary executing the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date certificate pursuant to clause (as applicable)ii) above;
(ivc) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes prior to the Responsible Officers set forth on making of the incumbency certificates 2016 Term Loans, the Administrative Agent shall have received a Notice of such Loan Party delivered on Borrowing, substantially in the Second Amendment Effective Dateform of Exhibit C hereto;
(vd) good standing certificates evidencing that each Loan Party is duly organized or formed the Administrative Agent shall have received, on behalf of itself, the Collateral Agent and that each Loan Party is validly existing and in good standing;
(vi) the Lenders, a favorable written opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties and (yA) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Second Amendment Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender Agent and the Lenders, and (C) covering such other matters relating to the Amendment and the Loan Documents as the Administrative Agent shall reasonably request and that are customary to cover in transactions of this type, and the Borrower hereby requests such counsel to deliver such opinions;
(i) the representations and warranties in Section 3 hereof shall be true and correct in all material respects on and as of the Second Amendment Effective Date, (ii) the Borrower shall have performed in all material respects all agreements and satisfied all conditions which this Amendment provides shall be performed or satisfied by it on or before the Second Amendment Effective Date except as otherwise disclosed to and agreed to in writing by the Administrative Agent or that are otherwise waived, and (iii) the Borrower shall have delivered to the Administrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J certifying as to the Credit Agreement from the chief financial officer accuracy of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solventclause (c)(i); and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(bf) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates paid to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
for the ratable distribution to (i) at least three Business Days prior to each RL Lender providing a Total Revolving Loan Commitment available on the Third Second Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including an upfront fee on the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Second Amendment Effective Date; and
Date equal to 0.50% of the Total Revolving Loan Commitment, (ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing 2016 Term Loan all interest accrued but unpaid on Lender, the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due Yield Enhancement Fee pursuant to such Lender under Section 3.05 2.05(b) of the Credit Agreement, which are hereby waived).
Agreement and (fiii) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are such other amounts due and payable on or before prior to the Third Second Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed that are required to be paid on under the Third Amendment Effective Date;
(g) since April 4Loan Documents, 2018including, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Dateextent invoiced, reimbursement or payment of all reasonable and (c) a pro forma consolidated balance sheet and related statement documented out of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be pocket expenses required to be prepared in compliance with Regulation S-X reimbursed or paid by the Borrower hereunder or under any other Loan Document. Once paid, none of the Securities Act fees shall be refundable under any circumstance or subject to any right of 1933, as amended, setoff counterclaim or include adjustments for purchase accounting);
any similar right (i) prior to, or substantially concurrently with the initial funding each of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated which is hereby waived by Holdings and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderBorrower). [***] = CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
Appears in 1 contract
Sources: Credit Agreement (Blackline, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on solely upon the date on which satisfaction of the following conditions precedent shall be satisfied (upon satisfaction of such dateconditions, such date being referred to in this Agreement as the “Third Amendment Effective Date”):
(a) the The Administrative Agent shall have received a counterpart signature page of this Agreement duly executed by each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and the Lenders party hereto constituting the Required Lenders.
(yb) Eversheds ▇▇▇▇▇▇▇▇▇▇ The Borrower shall have (USi) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed paid an amendment fee to the Administrative Agent, for the Collateral Agentaccount of each undersigned Lender who has executed and delivered its signature page to this Amendment on March 8, the 2018 Incremental First Lien Lender and the Lenders2019, in form an amount in cash equal to 1.00% of such Lender’s Loans and substance reasonably satisfactory to Commitments on the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (Bii) setting forth calculations reimbursed or paid all costs, expenses, fees and other amounts incurred by the Administrative Agent, the Arrangers and the Lenders in connection with this Agreement, including, to the extent invoiced, reimbursement or payment of all reasonable detail demonstrating compliance with the First Lien Leverage Ratio out-of-pocket expenses (including reasonable costs, expenses, fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(c) The representations and warranties set forth in Section 2.12(a) 4 of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty this Agreement shall be true and correct in all material respects on and as of the respective Effective Date, except to the extent such representations and warranties expressly relate to an earlier date or for the respective period, as the case may be); provided, and except that such materiality qualifier shall not be applicable to any Third Amendment Effective Date Representation representation and warranty that is already qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);.
(d) The Administrative Agent and the Borrower Lenders party hereto shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct (including, for the avoidance of doubt, a certification regarding beneficial ownership as is reasonably requested required by 31 C.F.R. § 1010.230).
(e) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Arrangers and the Lenders party hereto, a written opinion from each of (i) Cozen ▇’▇▇▇▇▇▇, California, Delaware, Massachusetts, New York and Texas counsel for the Borrower, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties, in writing by each case, (A) dated as of the Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent, the Arrangers and the Lenders party hereto, and (C) covering such matters relating to this Agreement and the other Loan Documents as the Administrative Agent at least ten (10) business days prior shall reasonably request, and the Borrower hereby requests such counsel to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to deliver such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)opinions.
(f) there The Administrative Agent shall have been paid received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below (or in the alternative, a certification by such Loan Party as to no changes to the by-laws since the date of the last secretary’s certificate delivered to the Administrative Agent), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of such Loan Party authorizing the execution, delivery and performance of this Agreement to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that attached thereto is a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization (or in the alternative, a certification by such Loan Party as to no changes to the certificate or articles of incorporation since the date of the last secretary’s certificate delivered to the Administrative Agent), and (D) as to the incumbency and specimen signature of each officer executing this Agreement, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; (iv) such other documents as the Administrative Agent may reasonably request, including customary lien and judgment searches with respect to each Loan Party (including the Company) and customary evidence of insurance coverage and customary lender’s loss payable endorsements as to casualty and business interruption insurance.
(g) The representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
(h) At the time of and immediately after giving effect to the consummation of the transactions to be effected on the Effective Date, no Default or Event of Default shall have occurred and be continuing or be continuing.
(i) The Administrative Agent shall have received a certificate, dated as of the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in clauses (c), (g) and (h) of this Section 3.
(j) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, for certifying that the account of Borrower and its Subsidiaries, on a consolidated basis after giving effect to this Agreement, are Solvent.
(k) The Administrative Agent shall have received an intercreditor agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders Required Lenders, duly executed by Credit Suisse, as Senior Lien Representative (including the 2018 Incremental First Lien Lenderas defined therein), the Administrative Agent, as applicableJunior Lien Representative (as defined therein), all fees and, to the extent required by Section 10.04 and each of the Credit Loan Parties (the “Intercreditor Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;”).
(gl) since April 4Substantially concurrently with the effectiveness of the Amendment, 2018, there the Priming Senior Secured Term Loan Facility shall have been no Material Adverse Effect (as defined funded in accordance with the Acquisition terms and conditions of the Priming Senior Secured Term Loan Credit Agreement);.
(hm) The Administrative Agent and the Arrangers Lenders shall have received (a) from the Loan Parties an audited consolidated statement of financial position, consolidated statements of income initial 13-week budget that is in form and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior substance reasonably satisfactory to the Third Required Lenders (it being understood and agreed that the budget attached hereto as Annex IV is reasonably satisfactory to the Required Lenders) (the “Initial Budget”).
(n) The Administrative Agent shall have received an executed Amendment Effective DateNo. 2 to Guarantee and Collateral Agreement, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower dated as of the date of hereof (the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.Amendment No. 2
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligations of each Tranche B Lender to fund the Tranche B Loans, shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (the first Business Day on which such dateconditions precedent are so satisfied, the “Third Amendment Effective Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement and each of the other Loan Documents requested by the Agent from the Borrower, each other Loan Party party thereto and the Agent.
(b) The Administrative Agent shall have received each of on or before the Effective Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and (and, except for any Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts A certificate of this Amendment;
(ii) resolutions the Secretary or authorizations Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunderBorrowing under the Tranche B Facility , and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) either Certified copies of the Organization Documents certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certification by a Responsible Officer certificate as to the good standing (where such concept is applicable) of each Loan Party that there have been no changes to the Organization Documents as of a recent date, from such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date Secretary of State (as applicableor comparable entity);.
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to for the Borrower and the other Loan Parties, in each case dated as of the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Issuing Bank and each Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Collateral Agent;Loan Documents and the Transactions as the Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(viiv) a customary certificateAny Notes, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) extent requested at least three Business Day Days prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered Date by any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the Third Amendment Effective Date Representations form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form attached hereto as Exhibit H.
(e) The representations and warranties contained in Section 4.01 and in each other Loan Document are correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true correct in all respects) except where such representations and correct as of the Third Amendment Effective Date (except warranties expressly refer to an earlier date, in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation representations and warranty warranties shall be true and correct in all material respects as of the respective date or (except for the respective period, as the case may be); provided, those representations and warranties that any Third Amendment Effective Date Representation are qualified by materiality or subject to a “material adverse effect”Material Adverse Effect, “material adverse change” or similar term or qualification which shall be true and correct in all respects (after giving effect to any respects) on and as of such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the date. The Administrative Agent shall have received:
(i) at least three Business Days prior to received a certificate, dated the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) from a pro forma consolidated balance sheet and related statement of income Financial Officer of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in certifying compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accountingthis Section 3.01(e);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligations of each Term Lender and Revolving Credit Lender to fund its respective Loans shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (the first Business Day on which such dateconditions precedent are so satisfied, the “Third Amendment Effective Closing Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement and each of the other Loan Documents requested by the Agent from Holdings, the Borrower, each other Loan Party party thereto, each Lender and Issuing Bank as of the Closing Date and the Agent.
(b) The Administrative Agent shall have received each of on or before the Closing Date the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and (and, except for any Notes) in the case of clause (vi) below, the Collateral Agent):sufficient copies for each Lender:
(i) executed counterparts A certificate of this Amendment;
(ii) resolutions the Secretary or authorizations Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunderBorrowing under the Facilities, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) either Certified copies of the Organization Documents certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Closing Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certification by a Responsible Officer certificate as to the good standing (where such concept is applicable) of each Loan Party that there have been no changes to the Organization Documents as of a recent date, from such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date Secretary of State (as applicableor comparable authority);.
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a A favorable opinion of (x) FriedSkadden, FrankArps, HarrisSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for Holdings, the Loan Parties Borrower and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the other Loan Parties, in each case dated as of the Third Amendment Effective Closing Date, addressed to the Administrative Agent, the each Collateral Agent, the 2018 Incremental First Lien Issuing Bank and each Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Collateral Agent;Loan Documents and the Transactions as the Agent shall reasonably request, and each of Holdings and the Borrower hereby requests such counsel to deliver such opinion.
(viiv) a customary certificateAny Notes, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) extent requested at least three Business Day Days prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered Closing Date by any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the Third Amendment Effective Date form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of each of Holdings and the Borrower in the form attached hereto as Exhibit F-1 and Exhibit F-2, respectively.
(e) The Spinco Internal Reorganization and the Spinco Transfer shall be consummated in all material respects substantially concurrently with the initial funding of the Spinco Facilities in all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement, and the Spinco Distribution and the Spinco Acquisition (and the Spinco Merger) shall have been consummated, or shall be consummated substantially contemporaneously with the initial funding under the Facilities, in all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement (in each case without (i) any waiver of a closing condition by Holdings or any of its Affiliates, (ii) any waiver of any kind (other than a waiver of the type described in the foregoing clause (i)) by any Person or (iii) any amendment, modification or supplement thereof by any Person or any consent or election thereunder by any Person (any one of the foregoing, a “Modification”) that, in any such case, is material and adverse to the Arrangers or the Lenders (in each case, in their capacities as such) without the prior written consent of the Arrangers) (it being understood and agreed that any Modification that results in (y) any increase in the amount of the Borrower Special Dividend from $1,029,210,261 shall be deemed to be materially adverse to the Lenders and the Arrangers or (z) an increase in the amount of the Spinco Special Cash Payment of greater than 10% from $1,800,000,000 shall be deemed to be materially adverse to the Lenders and the Arrangers). The Acquisition Agreement, the Spinco Separation Agreement and all other related documentation shall be in form and substance reasonably satisfactory to the Arrangers; provided that (x) the Acquisition Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers and (y) the Spinco Separation Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers. The Acquisition Agreement Representations shall be true and correct as of and the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Specified Representations shall be true and correct in all material respects as of the respective date (or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materialityif separately qualified by materiality or Material Adverse Effect);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the . The Administrative Agent shall have received:received a certificate, dated the Closing Date, from a Financial Officer of each of Holdings and the Borrower certifying compliance with this Section 3.01(e).
(if) All fees required to be paid by Holdings and the Borrower hereunder or as separately agreed by Holdings or the Borrower and any of the Arrangers or the Lenders, in each case on or prior to the Closing Date, and, to the extent invoiced at least three Business Days prior to the Third Amendment Effective Closing Date, all documentation invoiced expenses of the Agent and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, the Arrangers relating hereto (including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior those of counsel to the Third Amendment Effective Date; and
Agent and the Arrangers), shall have in each case been paid (ii) for which amounts may be offset against the account proceeds of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid Loans on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waivedClosing Date).
(fg) there All Indebtedness and any other amounts due or outstanding under the Existing Credit Agreement shall have been, or substantially contemporaneously with the initial funding under the Facilities shall be, repaid in full, all commitments in respect thereof shall have been paid terminated and all guarantees thereof (if any) and security therefor (if any) discharged and released. After giving effect to the Transactions and the other transactions contemplated hereby, Holdings and the Restricted Subsidiaries (including the Acquired Business) shall not have any outstanding Indebtedness for borrowed money or preferred stock other than the Indebtedness under the Facilities and the Spinco Facilities, (b) the Borrower’s 7.125% Notes due 2032, the Borrower’s 5.50% Notes due 2033, the 2020 Notes and the 2040 Notes.
(h) Since December 31, 2015, there shall not have occurred any Spinco Material Adverse Effect.
(i) to The initial funding under the Administrative AgentSpinco Facilities shall have been consummated prior to, for or shall be consummated substantially contemporaneously with, the account of initial funding under the Administrative Facilities.
(j) The Agent and the Lenders Arrangers shall have received: (including a)(i)audited Consolidated balance sheets and related statements of income, comprehensive income, stockholders’ equity and cash flows of Holdings and the 2018 Incremental First Lien Lender)Subsidiaries for the fiscal years ended January 31, as applicable2014, all fees andJanuary 30, to the extent required by Section 10.04 of the Credit Agreement2015 and January 1, expenses (including reasonable out-of-pocket fees2016, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated unaudited Consolidated balance sheets and related statements of income, comprehensive income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP Holdings and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreementother than any fourth fiscal quarter) ended after December 31January 1, 2017 2016 and at least 45 days prior to the Third Amendment Effective Closing Date; (b)(i) the Spinco Audited Financial Statements (as defined in the Acquisition Agreement) and (ii) the unaudited combined and Consolidated financial statements, including the combined and Consolidated balance sheets and the combined and Consolidated statements of earnings, cash flows and parent equity, of (x) the Spinco Business and (y) Spinco (before giving effect to the Spinco Internal Reorganization and the Spinco Transfer) for each fiscal quarter ended after December 31, 2015 (other than any fourth fiscal quarter) and at least 50 days prior to the Closing Date (or, in the case of the first fiscal quarter ended in 2016, 55 days), and (c) a pro forma consolidated Consolidated balance sheet and related pro forma Consolidated statement of income of Holdings and the Borrower Restricted Subsidiaries as of the date of the consolidated balance sheet of, and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such dateon, the last day of the most recently completed four-fiscal quarter period for which financial statements of Holdings pursuant to clause (a) above has been delivered, in each case prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such income statement); and (iv) all other financial statements) (which shall not be required to be prepared financial, marketing and other information reasonably requested by any Arranger and customarily provided by borrowers in compliance with Regulation S-X the preparation of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);Information Memorandum.
(ik) The Agent and the Arrangers shall have received, at least three Business Days prior toto the Closing Date, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten Business Days prior to the Closing Date by the Agent or substantially concurrently the Arrangers.
(l) Each Collateral Agent shall have received a Perfection Certificate with respect to the initial funding Loan Parties dated the Closing Date and duly executed by a Responsible Officer of each of Holdings and the 2018 Incremental First Lien Term Loan, the Refinancing Borrower.
(m) The Security and Guarantee Documents shall have been consummated duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The applicable Collateral Agent, on behalf of the applicable Secured Parties, shall have a perfected first priority security interest in the Collateral (subject to applicable Liens permitted under Section 6.01 of this Agreement) described in each Security and Guarantee Document.
(n) Each document (including any UCC financing statements but excluding any Mortgages) required by the Security and Guarantee Documents or under applicable law or reasonably requested by any Collateral Agent to be filed, registered or recorded in order to create in favor of any Collateral Agent, for the benefit of the Lenders and the Contribution other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other person (subject to applicable Liens permitted under Section 6.01 of this Agreement), shall have been made; and
(j) the Acquisition shall be consummated pursuant filed, registered or recorded or delivered to the Acquisition Agreementapplicable Collateral Agent in proper form for filing, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto registration or consents with respect thereto that are materially adverse recordation. On or prior to the Arrangers or Closing Date, the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) applicable Collateral Agent shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price have received all Pledged Collateral (as defined in the Acquisition Guarantee and Collateral Agreement) nor required to be delivered to such Collateral Agent pursuant to the increase Guarantee and Collateral Agreement, together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as such Collateral Agent may reasonably request.
(o) Other than as set forth in Section 5.12, (i) each of the Security and Guarantee Documents, in form and substance reasonably satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the applicable Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.01 of this Agreement, (iii) if applicable, each such Security and Guarantee Document shall have been filed and recorded in the Purchase Price recording office as specified in the Perfection Certificate (or a lender’s title insurance policy, in form and substance reasonably acceptable to such Collateral Agent, insuring such Security and Guarantee Document as a first lien on such Mortgaged Property (subject to applicable Liens permitted under Section 6.01 of this Agreement) shall have been received by such Collateral Agent) and, in connection therewith, such Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing and recordation and (iv) such Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by such Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than Permitted Liens, together with such surveys, abstracts, appraisals and legal opinions required to be furnished pursuant to the extent funded terms of the Mortgages or as reasonably requested by such Collateral Agent or the Lenders. Notwithstanding the foregoing, if, after the use by the Loan Parties of commercially reasonable efforts to cause the conditions relating to the collateral and guarantee matters set forth in Section 3.01(n) and Section 3.01(o) above to be satisfied as of the Closing Date (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of certificates representing such Equity Interests of the Borrower, together with stock powers or other instruments of transfer with respect thereto endorsed in blank and the security agreement giving rise to the security interest therein), such conditions shall not be a condition precedent to the effectiveness of this Agreement on the Closing Date, but shall be accomplished as promptly as practicable after the Closing Date and in any event within any applicable period specified on Schedule 5.12 (which shall be no later than the date that is 90 days following the Closing Date, unless a later date is otherwise agreed to by the Agent in its reasonable discretion). Without limiting the generality of the provisions of Section 8.03, for purposes of determining compliance with the proceeds conditions specified in this Section 3.01, each Lender as of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) Closing Date shall be deemed materially adverse 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 a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Arrangers and the 2018 Incremental First Lien LenderClosing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 Agreement shall not become effective, and the amendments no Lender shall be obligated to the Credit Agreement contained in Section 3) shall become effective on the date on which make its Advance hereunder, until each of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):is satisfied:
(a) The Administrative Agent shall have received counterparts of this Agreement duly executed by each of the parties listed on the signature pages hereof (or in the case of any party as to which such an executed counterpart shall not have been received, the Administrative Agent shall have received each evidence satisfactory to it of the following, each execution and delivery of which shall be originals a counterpart hereof by such party).
(b) On or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of prior to the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each , the Administrative Agent shall have received the following in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts (A) Certified copies of this Amendment;
(ii) the resolutions or authorizations of the Board of Directors of each Loan Party authorizing approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action, and (B) a certificate from the Parent to the effect that all governmental and other third party approvals and consents have been obtained for the execution, delivery and performance of this Amendment the Loan Documents by any Loan Party and, in except for certain governmental and other third party approvals and consents the case failure of which to obtain would not have a Material Adverse Effect, for the consummation of the Borrower, Transaction.
(ii) A certificate of the borrowings hereunder, and a certification of a Responsible Officer Secretary or an Assistant Secretary of each Loan Party that certifying the names and true signatures of the officers of such resolutions have not been modified, rescinded Loan Party authorized to sign each Loan Document to which it is or amended is to be a party and are in full force the other documents to be delivered hereunder and effect;thereunder.
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion Favorable opinions of (xA) Fried, Frank, Harris, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Parent as to such matters as the Administrative Agent may reasonably request, (B) ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Loan Parties as to such matters as the Administrative Agent may reasonably request, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Bermuda counsel for ACE Bermuda and ACE Tempest as to such matters as the Administrative Agent may reasonably request.
(iv) (A) Year-end audited financial statements of the Parent and its Subsidiaries for the fiscal year ending December 31, 2007, and (B) an unaudited pro forma balance sheet of the Parent and its Subsidiaries which gives effect to the Transaction as if it had occurred on December 31, 2007 (or, if available, at the end of a more recent fiscal quarter of the Parent and the Acquired Company ended prior to the Effective Date).
(v) Evidence that each of ACE Bermuda and ACE Tempest shall have a minimum financial strength rating by A.M. Best of A+.
(vi) A certificate of the Parent, certifying a true and correct copy of (A) the Purchase Agreement and all amendments thereto, and (B) the assignment of the Parent’s right under the Purchase Agreement to purchase the outstanding capital stock of the Acquired Company, as of the date of such certificate.
(c) There shall have occurred no Material Adverse Change since December 31, 2006.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Parties and Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (x) would be reasonably expected to have a Material Adverse Effect or (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLPwould reasonably be expected to materially adversely affect the legality, special Georgia counsel to validity or enforceability of any Loan Document or the other transactions contemplated by the Loan PartiesDocuments.
(e) The Borrower shall have paid all accrued fees, in each case dated the Third Amendment Effective Dateincluding any applicable Ticking Fees, addressed owed to the Administrative Agent, the Collateral Agent, Arranger or the 2018 Incremental First Lien Lender Lenders and all accrued expenses of the Lenders, in form Administrative Agent (including the accrued fees and substance reasonably satisfactory expenses of counsel to the Administrative Agent and local counsel on behalf of the Collateral Administrative Agent;), in each case to the extent then due and payable.
(viif) a customary certificateThe Borrower and the Parent shall have available all other funds necessary to consummate the Transaction and concurrently with the Borrowing, substantially the Transaction shall be consummated in accordance with the terms and conditions therefor as set forth in the form of Exhibit J Purchase Agreement.
(g) The Borrowing shall occur no later than July 31, 2008.
(h) The Parent shall have assigned to the Credit Borrower or a wholly-owned Subsidiary thereof the Parent’s right under the Purchase Agreement from to purchase the chief financial officer outstanding capital stock of Holdingsthe Acquired Company.
(i) The following statements shall be true (and each of the execution of this Agreement, certifying the giving of the Notice of Borrowing and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a representation and warranty by each Loan Party that Holdings both on the date of the Notice of Borrowing and its Subsidiarieson the date of the Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01 are correct in all material respects on and as of such date, on a consolidated basis before and after giving effect to the TransactionsBorrowing and to the application of the proceeds therefrom, are Solvent; and
(viii) a certificate, dated as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than the Third Amendment Effective Datedate of the Borrowing, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied which case as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Datespecific date; and
(ii) for no Default has occurred and is continuing, or would result from the account of each Lender (as defined in Borrowing or the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 application of the Credit Agreement, which are hereby waived)proceeds therefrom.
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) The Administrative Agent shall have received such other approvals, opinions or documents as the Acquisition shall be consummated pursuant to Administrative Agent or any Lender through the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAdministrative Agent may reasonably request.
Appears in 1 contract
Sources: Term Loan Agreement (Ace LTD)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit The effectiveness of this Agreement contained in Section 3) shall become effective on the date on which is conditioned upon satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the Administrative Agent shall have received each The Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Datesuch date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) this Agreement duly executed counterparts by each of this Amendment;Holdings, the Borrowers, the Agent, and the Lenders.
(ii) resolutions or authorizations of each Loan Party authorizing the executionSecurity Documents (including, delivery and performance of this Amendment and, in the case of the Borrowerwithout limitation, the borrowings hereunderSecurity Agreement), and a certification of a Responsible Officer of each duly executed by the applicable Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectParties;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)[ reserved]; Reserved];
(iv) either such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party or a certification by a Responsible Officer as the Agent may reasonably require evidencing (A) the authority of each Loan Party that there have been no changes to enter into this Agreement and the Responsible Officers set forth on the incumbency certificates of other Loan Documents to which such Loan Party delivered on is a party or is to be a party and (B) the Second Amendment Effective Dateidentity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates evidencing copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) a favorable an opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in house counsel to the Loan Parties Holdings and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, one or more special Georgia or local counsel to Holdings, the Borrowers, and the other Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and each Lender as to such matters as the Collateral AgentAgent may reasonably request;
(vii) a customary certificate, substantially in the form certificate signed by an Authorized Officer of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiariesthe Borrowers certifying (A) that the conditions specified in Section 4.02 have been satisfied, on a consolidated basis after giving effect to and (B) that the Transactionsincurrence of the Term Loans does not conflict with the Material Documents, are Solventand attaching certain schedules (the “Closing Certificate”); and
(viii) a certificatesuch other customary certificates, dated documents or consents as the Agent reasonably may require.
(b) All actions required by law or reasonably requested by the Agent to be undertaken, and all, documents and instruments, including Uniform Commercial Code financing statements and, with respect to registered, issued and applied-for Intellectual Property, IP Security Agreements, required by law or reasonably requested by the Agent to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Third Amendment Effective DateAgent, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c)or, 4(g) and 4(j) with respect to IP Security Agreements, shall have been satisfied as of executed and delivered to the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance Agent for filing with the First Lien Leverage Ratio USPTO, USCO or other IP Filing Office, as applicable.
(c) The conditions set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations 4.02 shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);satisfied.
(d) the Borrower There shall have appliedbeen no event or circumstance since January 30, concurrently with 2017 that has had or would reasonably be expected to have, either individually or in the making of the 2018 Incremental First Lien Term Loanaggregate, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;a Material Adverse Effect.
(e) All fees required to be paid to the Administrative Agent on or before the Effective Date shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested been paid in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)full.
(f) there The Borrowers shall have been paid (i) to the Administrative Agent, for the account all costs and expenses of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by set forth in Section 10.04 of 9.04(a)) incurred in connection with or relating to this Agreement and the Credit Agreementother Loan Documents, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) counsel to the ArrangersAgent, all other compensation separately agreed to be paid the extent invoiced prior to or on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on provided that such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which payment shall not be required to be prepared in compliance with Regulation S-X thereafter preclude a final settling of accounts between the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated Borrowers and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderAgent).
Appears in 1 contract
Sources: Term Loan Credit Agreement
Conditions Precedent to Effectiveness. This First Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied have been fulfilled prior to or concurrently herewith, each to the satisfaction of the Administrative Agent (such date, the “Third First Amendment Effective Date”):
(a) This First Amendment and all other documents or other deliverables or conditions required hereunder or listed on Schedule A annexed hereto (collectively, the “First Amendment Documents”), shall have been duly executed and/or delivered by the respective parties hereto and thereto, and the Administrative Agent shall have received a counterpart of each of the following, First Amendment Documents signed by each of which shall be originals party thereto or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably written evidence satisfactory to the Administrative Agent (and, in the case including by telecopy or other electronic transmission of clause (via signed signature page) below, the Collateral Agent):that each party has signed a counterpart of each applicable First Amendment Document.
(ib) executed counterparts of All necessary consents and approvals to this Amendment;First Amendment shall have been obtained.
(iic) resolutions No Default or authorizations Event of each Loan Party authorizing the executionDefault shall have occurred and be continuing, delivery both before and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis immediately after giving effect to the Transactions, are Solvent; andexecution of this First Amendment.
(viiid) a certificateAfter giving effect to this First Amendment, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth representations and warranties herein and in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to Agreement and the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed other Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Documents shall be true and correct in all material respects on and as of the respective date hereof, as though made on such date (except to the extent that such representations and warranties (i) relate solely to an earlier date, in which case they shall be true and correct as of such date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation (ii) are qualified by or subject to a “material adverse effect”materiality in the text thereof, “material adverse change” or similar term or qualification in which case they shall be true and correct in all respects (after giving effect to any such qualification of materialityrespects);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;.
(e) The Loan Parties shall have paid all fees required to be paid in connection with this First Amendment to the Administrative Agent shall have received:
(i) at least three Business Days to the extent invoiced on or prior to the Third First Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 The effectiveness of this Agreement and the amendments obligations of each 2015 Incremental Term Lender to make 2015 Incremental Term Loans shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction or waiver of the following conditions precedent shall be (the first Business Day on which such conditions precedent are so satisfied (such dateor waived, the “Third Second Amendment Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Agreement that, when taken together, bear the signatures of (i) the Borrower, Holdings and the Guarantors, (ii) the Administrative Agent, (iii) each 2015 Incremental Term Lender and (iv) Lenders constituting the Required Lenders;
(b) at the time of and immediately after the Incremental Term Loan Transactions, no Default or Event of Default shall have occurred and be continuing;
(c) the representations and warranties set forth in Article III of the following, Credit Agreement and in each of which other Loan Document shall be originals or facsimiles true and correct (followed promptly by originalsi) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause the representations and warranties qualified as to materiality, in all respects, and (iii) belowotherwise, by in all material respects, in each case on and as of the 2018 Incremental First Lien LenderSecond Amendment Effective Date with the same effect as though made on and as of such date, each except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date;
(d) the Administrative Agent shall have received a certificate, dated as of the Third Second Amendment Effective Date and executed by a Financial Officer of the Borrower, certifying (ori) as to the satisfaction of the conditions set forth in paragraphs (b) and (c) above, (ii) that the representations and warranties of each Loan Party set forth in Sections 6(a) hereof are true and correct in all material respects and (iii) that the case representations and warranties contained in Sections 3.05 and 3.21 of certificates the Credit Agreement are true and correct in all material respects; provided that (x) Section 3.05 of governmental officialsthe Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 5.04(a) and 5.04(b) of the Credit Agreement, a recent date before respectively, prior to the Third Second Amendment Effective Date and (y) with respect to the representations and warranties in Section 3.21 of the Credit Agreement, the words “Closing Date” in each place set forth therein shall be deemed to be “Second Amendment Effective Date” and the word “Transactions” shall be deemed to be “Incremental Term Loan Transactions”;
(e) and each the Administrative Agent shall have received a notice of Borrowing in respect of the 2015 Incremental Term Loans on the date hereof in accordance with the terms hereof;
(f) the Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to the Administrative Agent, from the chief financial officer of Holdings to the effect that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Incremental Term Loan Transactions, are solvent;
(g) the Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (andi) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Rosenman LLP, counsel for Holdings and the Borrower and (ii) each local counsel listed on Schedule 4.02(b) of the Existing Credit Agreement, in each case (A) dated the case Second Amendment Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders, and (C) in customary form and substance for transactions of this type, and Holdings and the Borrower hereby request such counsel to deliver such opinions;
(h) the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, certificate of formation or other constitutive 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, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or, in each case, a comparable governmental official, if available); (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Second Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, or operating, management or partnership agreement of such Loan Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (viB) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Collateral Agent):
(i) executed counterparts board of this Amendment;
(ii) resolutions directors, board of managers or authorizations members of each other governing body, as applicable, of such Loan Party authorizing the execution, delivery and performance of this Amendment Agreement and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, (iiiC) either that the Organization Documents certificate or articles of each Loan Party incorporation, partnership agreement or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents other constitutive document of such Loan Party have not been amended since the Closing Datedate of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the New Incremental First Lien Term Commitments Effective Date and/or incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the Second Amendment Effective Date incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as applicable)the Lenders or the Administrative Agent may reasonably request;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(ei) the Administrative Agent shall have received:
(i) , at least three five Business Days prior to the Third Second Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as is that has been reasonably requested in writing by the Administrative Agent at least ten or any 2015 Incremental Term Lender;
(10j) business days prior to the Third Amendment Effective Date; and
Administrative Agent shall have received, substantially concurrently with the making of the 2015 Incremental Term Loans, (i) the aggregate Consent Fee (as defined below) and (ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be Fees and other amounts due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) and payable to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees andincluding, to the extent required by Section 10.04 invoiced, reimbursement or payment of the Credit Agreement, expenses (including reasonable all out-of-pocket expenses (including the reasonable fees, disbursements and other charges and disbursements of legal counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed required to be reimbursed or paid on by Holdings and the Third Amendment Effective Date;Borrower under the Credit Agreement or under any other Loan Document; and
(gk) since April 4, 2018, there shall have been no Material Adverse Effect Credit Suisse Securities (as defined in the Acquisition Agreement);
(hUSA) the Arrangers LLC shall have received all fees and expenses separately agreed in writing by the Borrower and Credit Suisse Securities (aUSA) an audited consolidated statement LLC in connection herewith. The Administrative Agent shall notify the Borrower of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Second Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition notice shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers conclusive and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderbinding.
Appears in 1 contract
Sources: Second Amendment and First Incremental Assumption Agreement (Diamond Resorts International, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become be effective on the date on which when each of the following conditions precedent shall be satisfied (the date of such dateeffectiveness, the “Third Sixth Amendment Effective Date”):
(a) the Administrative Agent shall have received each of the following, each of which shall be originals originals, telecopies, other electronic image scan transmission (e.g., “pdf” or facsimiles “tif” via electronic mail) or DocuSign® electronic signature, subject to Section 10.10 of the Credit Agreement (followed promptly by originals) unless otherwise specifiedspecified or permitted by the Credit Agreement :
(i) this Amendment, each properly duly executed by the Borrower, the Guarantors, the Agent, and Lenders constituting the Required Lenders;
(ii) a certificate signed by a Responsible Officer of the signing Borrower certifying that (1) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Party and, Documents are true and correct in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated all material respects on and as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Sixth Amendment Effective Date, addressed except to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender extent that such representations and the Lenderswarranties specifically refer to an earlier date, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, which case they are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective periodsuch earlier date, as and in the case may be); provided, that of any Third Amendment Effective Date Representation representation and warranty qualified by or subject to a “material adverse effect”materiality, “material adverse change” or similar term or qualification they shall be true and correct in all respects respects, and (after giving effect to any such qualification 2) no Default or Event of materiality);Default exists as of the Sixth Amendment Effective Date; and
(db) all reasonable Credit Party Expenses incurred by the Borrower shall have applied, concurrently Agent in connection with the making preparation and negotiation of this Amendment and related documents (including the 2018 Incremental First Lien Term Loan, reasonable fees and expenses of counsel to the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(eAgent) the Administrative Agent shall that have received:
(i) been invoiced at least three two Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there date hereof shall have been paid (i) to in full by the Administrative Agent, for the account Borrower in accordance with terms of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, has been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof and of each of the following, each of which other document required hereunder.
(b) The Borrower shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause have (i) below[reserved] and (ii) paid all expenses and reimbursements pursuant to Section 7 hereof, by to the 2018 Incremental First Lien Lender, each dated as of extent provided to the Third Amendment Effective Date Borrower at least three (or, in 3) Business Days prior to the case of certificates of governmental officials, a recent date before the Third Sixth Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):.
(ic) executed counterparts of this Amendment;
(ii) resolutions All material Governmental Approvals and consents and approvals of, or authorizations of each Loan Party authorizing the executionnotices to, delivery shall have been obtained and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are be in full force and effect;effect (or waived, and if such waiver is materially adverse to the interests of the Lenders, with the consent of the Administrative Agent).
(iiid) either Each of the Organization Documents of each representations and warranties made by any Loan Party in or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel pursuant to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the respective extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation (ii) such representations and warranties are qualified by or subject to a “material adverse effect”materiality in the text thereof, “material adverse change” or similar term or qualification in which case they shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;respects.
(e) Upon giving effect to this Amendment and the Administrative Agent incurrence of all Indebtedness contemplated hereby, no Default or Event of Default shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation occurred and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)continuing.
(f) there The Administrative Agent shall have been paid received (i) a certificate of each Loan Party, dated Sixth Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C attached to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party certified, in the case of formation documents, as of a recent date by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party or that there has been no change to Operating Documents of such Loan Party that were previously delivered to the Administrative Agent (which may be in the form of a certification from such Loan Party that there have been no changes from the Operating Documents previously delivered to the Administrative Agent on the Closing Date), (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Amendment and the other Loan Documents to which such Loan Party is a party thereto or that there has been no change to the board resolutions or written consents, as the case may be, of such Loan Party that were previously delivered to the Administrative Agent (which may be in the form of a certification from such Loan Party that such board resolutions or written consents, as the case may be, have not in any way been amended, modified, revoked or rescinded, and have been in full force and effect since their adoption up to and including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Sixth Amendment Effective Date and are now in full force and effect), and (C) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party (which may be in the form of a certification from such Loan Party that there have been no changes from the incumbency and signature specimens previously delivered to the Administrative Agent on the Closing Date) and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;a long form good standing certificate for each Loan Party from its respective jurisdiction of organization.
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers The Administrative Agent shall have received (a) an audited consolidated statement a Solvency Certificate from the chief financial officer or treasurer of financial positionthe Borrower, consolidated statements of income and comprehensive incomecertifying that the Loan Parties, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (taken as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Datea whole are, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933Sixth Amendment Capital Stock Repurchase will be, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderSolvent.
Appears in 1 contract
Sources: Credit Agreement (Appian Corp)
Conditions Precedent to Effectiveness. This Amendment (including The effectiveness of the agreements in Section 2 amendment and restatement of the amendments Existing Credit Agreement is subject to the Credit Agreement contained in satisfaction (or waiver pursuant to Section 310.01) shall become effective on the date on which of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles e-mailed copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender), each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) ), and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of this AmendmentAgreement;
(ii) resolutions or authorizations Notes executed by the Borrowers in favor of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectLender requesting Notes;
(iii) either the Organization Documents certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party or a certification by evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)is a party;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates documents and certifications evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standingstanding and qualified to engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to July 31, 2019, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect; and
(vi) a favorable opinion opinions of (xi) FriedTarrant Sibley, FrankEsq., HarrisSenior Vice President, ▇▇▇▇▇▇▇ Chief Legal Officer and Secretary of the Company and (ii) Cravath, Swaine & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia New York counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;.
(b) All accrued and invoiced fees and expenses of the Borrower Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;been paid.
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) Upon the reasonable request of any Lender made at least three 10 Business Days prior to the Third Amendment Effective Date, all the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation, the PATRIOT ActAct and the AML Legislation, as is reasonably requested in writing by the Administrative Agent each case at least ten (10) business days 5 Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) at least 10 Business Days prior to the ArrangersEffective Date, all other compensation separately agreed any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, at least 5 Business Days prior to the Effective Date, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be paid on satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as notice from such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days Lender prior to the Third Amendment proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Company and the Lenders of the occurrence of the Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition notice shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers conclusive and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderbinding.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including The satisfaction of each of the agreements in Section 2 and the amendments following shall constitute conditions precedent to the Credit effectiveness of this Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied and each and every provision hereof (such date, date being the “Third Amendment Agreement Effective Date”):
(a) the Administrative Agent Lender shall have received counterparts of this Agreement duly executed and delivered by each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) Borrower and each Guarantor;
(b) Lender shall have received, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):Lender:
(i) a duly executed counterparts original common stock purchase warrant issued to Lender in the form of this Amendment;Exhibit A hereto (the “First Additional Warrant”),
(ii) a duly executed original common stock purchase warrant issued to Lender in the form of Exhibit B hereto (the “Second Additional Warrant”),
(iii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Senior Officers of each Loan Party authorizing as Lender may require to establish the execution, delivery identities of and performance of this Amendment and, in verify the case of the Borrower, the borrowings hereunder, authority and a certification of a Responsible Officer capacity of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or Senior Officer thereof authorized to act as a certification by a Responsible Senior Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)thereof;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such evidence as Lender may reasonably require to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing verify that each Loan Party is duly organized or formed formed, validly existing, in good standing (to the extent such concept is applicable in the relevant jurisdiction) and that qualified to engage in business in such Loan Party’s jurisdiction of organization and in each foreign jurisdiction in which such Loan Party is validly existing and required to be qualified, including certified copies of such Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in good standing;
(vi) a favorable opinion of (x) Friedbusiness, Franktax clearance certificates, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;like,
(c) the Third Amendment Effective Date Representations shall except for representations and warranties which would otherwise fail to be true and correct solely as a result of the Third Amendment Effective Date (except occurrence and continuance of the Specified Defaults, the representations and warranties herein and in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation Credit Agreement and warranty the other Loan Documents shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that (except where any Third Amendment Effective Date Representation qualified by or such representation and warranty is already subject to a “material adverse effect”materiality standard, “material adverse change” or similar term or qualification shall be in which case such representation and warranty is true and correct in all respects respects) on and as of the date hereof, as though made on such date (after giving effect except to any the extent that such qualification of materialityrepresentations and warranties relate solely to an earlier day);
(d) no Default or Event of Default (other than the Borrower Specified Defaults) shall have appliedoccurred and be continuing on the date hereof, concurrently with nor shall result from the making consummation of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Datetransactions contemplated herein;
(e) no injunction, writ, restraining order or other order of any nature prohibiting, directly or indirectly, the Administrative Agent consummation of the transactions contemplated herein shall have received:been issued and remain in force by any Governmental Authority against any Borrower or any Guarantor or Lender;
(if) at least three Business Days prior Borrowers shall pay concurrently with the closing of the transactions evidenced by this Agreement, all fees, costs, expenses (including all attorneys fees and consultant fees) and taxes then payable pursuant to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, Credit Agreement (including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account Section 2.04 of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under and Section 3.05 12 of the Credit this Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there Lender shall have been no Material Adverse Effect (as defined received, in immediately available funds, the Acquisition Amendment Fee referred to in Section 11 of this Agreement);; and
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income all other documents and comprehensive income, consolidated statement of changes legal matters in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently connection with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing transactions contemplated by this Agreement shall have been consummated delivered, executed or recorded and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant in form and substance reasonably satisfactory to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Sphere 3D Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly a fully executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):copy hereof.
(ib) executed counterparts of All necessary consents and approvals to this Amendment shall have been obtained.
(c) Immediately after giving effect to this Amendment;, no Default or Event of Default shall have occurred and be continuing.
(iid) resolutions or authorizations of each Loan Party authorizing the execution, delivery The representations and performance warranties set forth in Section 5 of this Amendment and, in the case of the Borrower, the borrowings hereunder, shall be true and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered correct on the Second Amendment Effective Date;.
(ve) good standing certificates evidencing that each Loan Party is The Administrative Agent shall have received (i) the Second Amendment Fee Letter, duly organized or formed executed and that each Loan Party is validly existing delivered by the Borrower, and in good standing;(ii) all amounts required to be paid pursuant to the Second Amendment Fee Letter.
(vif) The Administrative Agent shall have received the results of a favorable opinion recent lien search in each of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties Parties’ jurisdictions of organization and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLPeach other jurisdiction reasonably required by the Administrative Agent, special Georgia counsel to and such searches shall reveal no Liens on any of the assets of the Loan Parties, in except for Liens permitted by Section 7.3 of the Credit Agreement.
(g) The Administrative Agent shall have received (i) a certificate of each case Loan Party, dated as of the Third Second Amendment Effective DateDate and executed by the Secretary, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificateManaging Member or equivalent officer of such Loan Party, substantially in the form of Exhibit J C to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
with appropriate insertions and attachments, including (ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(bA) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% Operating Documents of the voting Equity Interestssuch Loan Party certified, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or periodformation documents, such representation and warranty shall be true and correct in all material respects as of a recent date by the respective date secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the respective periodpurposes of authorizing such Loan Party to enter into and perform the Loan Documents to which such Loan Party is party, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(dC) the Borrower shall names, titles, incumbency and signature specimens of those representatives of such Loan Party who have appliedbeen authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) a long form good standing certificate for each fiscal quarter Loan Party from its respective jurisdiction of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Dateorganization, and (ciii) a pro forma consolidated balance sheet and related statement certificates of income of foreign qualification from each jurisdiction where the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as failure of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required Loan Party to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall qualified could reasonably be expected to have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “a Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Fastly, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received each counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) unless otherwise indicated below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;each Bank:
(viii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a Responsible Officer party, and of Holdings all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on to a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as copy of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date charter or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective periodother formation document, as the case may be); provided, of such Loan Party and each amendment thereto on file in such Secretary of State's office and (B) that (1) such amendments are the only amendments to such Loan Party's charter on file in such Secretary's office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Third Amendment Assistant Secretary, dated the Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(a)(iv), (B) a true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making copy of the 2018 Incremental First Lien Term Loanbylaws, limited liability company agreement or partnership agreement, as the proceeds case may be, of the 2018 Incremental First Lien Term such Loan to prepay Party as in full the aggregate principal amount of all Existing Term Loans outstanding effect on the Third Amendment Effective Date;
(edate on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all and (C) the due organization and good standing or valid existence of such Loan Party as a corporation, limited liability company or limited partnership organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vi) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered by the Loan Parties hereunder.
(vii) A certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 3.02(a) and Section 3.02(b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(viii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Corporate and M&A Counsel, of the Borrower, in form satisfactory to the Banks.
(ix) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Loan Parties, in form satisfactory to the Banks.
(b) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and the Banks that are required by regulatory authorities under applicable “know your "know-your-customer” and anti-money laundering " rules and regulations, including the PATRIOT Patriot Act, as is reasonably and requested in writing by the Administrative Agent or any Bank, at least ten (10) business days five Business Days prior to the Third Amendment Effective Date; and.
(iic) for The Borrower shall make such Borrowings and prepayments as shall be necessary to cause any outstanding Loans to be ratable with the account of each Lender Commitments.
(as defined in the Credit Agreementd) with an Existing Term Loan all interest All accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 fees and reasonable out-of-pocket expenses of the Credit Agreement, Joint Lead Arrangers (including the reasonable fees and expenses of counsel to the Joint Lead Arrangers for which are hereby waivedinvoices have been submitted) shall have been paid.
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Administrative Agent (including reasonable fees and expenses of counsel for which invoices have been submitted).
(f) there shall have been Any other fees required to be paid (i) to by the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable Borrower on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderpaid.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Amendment (including Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the agreements in Section 2 and Collateral Custodian, the amendments Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent precedent:
(i) this Agreement, all other Transaction Documents and all other agreements, instruments, certificates and other documents listed on Schedule II have been duly executed by, and delivered to, the parties hereto and thereto;
(ii) all up‐front expenses and fees (including reasonable and documented out‐of‐pocket legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(iii) the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be satisfied true and correct in all respects as so qualified) (such date, as certified by the “Third Amendment Effective Date”):Borrower);
(aiv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB‐ or higher) from an Acceptable Rating Agency, such as KBRA, and the Initial Lender shall have a received a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent shall have has received each all documentation and other information requested by the Administrative Agent acting at the direction of the followingMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti‐money laundering rules and regulations, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifiedincluding the USA PATRIOT Act, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each all in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, has been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof and of each of the following, each of which other document required hereunder.
(b) The Borrower shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause have (i) below[reserved] and (ii) paid all expenses and reimbursements pursuant to Section 7 hereof, by to the 2018 Incremental First Lien Lender, each dated as of extent provided to the Third Amendment Effective Date Borrower at least three (or, in 3) Business Days prior to the case of certificates of governmental officials, a recent date before the Third Fifth Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):.
(ic) executed counterparts of this Amendment;
(ii) resolutions All material Governmental Approvals and consents and approvals of, or authorizations of each Loan Party authorizing the executionnotices to, delivery shall have been obtained and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are be in full force and effect;effect (or waived, and if such waiver is materially adverse to the interests of the Lenders, with the consent of the Administrative Agent).
(iiid) either Each of the Organization Documents of each representations and warranties made by any Loan Party in or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel pursuant to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the respective extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation (ii) such representations and warranties are qualified by or subject to a “material adverse effect”materiality in the text thereof, “material adverse change” or similar term or qualification in which case they shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;respects.
(e) Upon giving effect to this Amendment and the Administrative Agent incurrence of all Indebtedness contemplated hereby, no Default or Event of Default shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation occurred and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)continuing.
(f) there The Administrative Agent shall have been paid received (i) a certificate of each Loan Party, dated Fifth Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C attached to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party certified, in the case of formation documents, as of a recent date by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party or that there has been no change to Operating Documents of such Loan Party that were previously delivered to the Administrative Agent (which may be in the form of a certification from such Loan Party that there have been no changes from the Operating Documents previously delivered to the Administrative Agent on the Closing Date), (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Amendment and the other Loan Documents to which such Loan Party is a party thereto or that there has been no change to the board resolutions or written consents, as the case may be, of such Loan Party that were previously delivered to the Administrative Agent (which may be in the form of a certification from such Loan Party that such board resolutions or written consents, as the case may be, have not in any way been amended, modified, revoked or rescinded, and have been in full force and effect since their adoption up to and including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Fifth Amendment Effective Date and are now in full force and effect), and (C) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party (which may be in the form of a certification from such Loan Party that there have been no changes from the incumbency and signature specimens previously delivered to the Administrative Agent on the Closing Date) and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;a long form good standing certificate for each Loan Party from its respective jurisdiction of organization.
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers The Administrative Agent shall have received (a) an audited consolidated statement a Solvency Certificate from the chief financial officer or treasurer of financial positionthe Borrower, consolidated statements of income and comprehensive incomecertifying that the Loan Parties, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (taken as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Datea whole are, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date Fifth Amendment Capital Stock Repurchase will be, Solvent.
(in the case of such balance sheeth) or at the beginning of such period (in the case of such other financial statements) (which The Administrative Agent shall not be required to be prepared in compliance with Regulation S-X have received a CDD Attestation Certificate of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderBorrower.
Appears in 1 contract
Sources: Credit Agreement (Appian Corp)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become effective on the first date on which the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):) on which all the following conditions are satisfied:
(a) the The Administrative Agent (or its counsel) shall have received from each party hereto, including Lenders constituting the “Required Lenders” under and as defined in the Existing Credit Agreement, a counterpart of this Amendment signed on behalf of such party.
(b) Immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date.
(c) The representations and warranties contained in Section 3 of this Amendment and in Article 3 of the following, each of which Existing Credit Agreement shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer true and correct in |US-DOCS\146475368.9|| all material respects on and as of the signing Loan Party anddate hereof, except that (i) for purposes of this Section 2(c), the representations and warranties contained in Section 3.04(a) of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a) or Section 5.01(b) of the Existing Credit Agreement (subject, in the case of clause (iunaudited financial statements furnished pursuant to Section 5.01(b) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (orExisting Credit Agreement, in to year-end audit adjustments and the case absence of certificates of governmental officialsfootnotes), a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):
(i) executed counterparts of this Amendment;
(ii) resolutions or authorizations to the extent that such representations and warranties in Article 3 of each Loan Party authorizing the execution, delivery and performance of this Amendment and, Existing Credit Agreement specifically refer to the “Effective Date” (as defined in the case of the BorrowerExisting Credit Agreement), the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes other than with respect to the Organization Documents of Section 3.13, such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes references shall be deemed to refer to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation and (iii) to the extent that such representations and warranties are already qualified or modified by materiality or subject to a “material adverse effect”words of similar effect in the text thereof, “material adverse change” or similar term or qualification they shall be true and correct in all respects (after giving effect to any such qualification of materiality);respects.
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) The Lenders party hereto and the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable received on or before the Third Amendment Effective Date payment of all expenses required to be reimbursed by the Borrower under that certain Engagement Letter, dated as of November 27, 2023, and the Loan Documents for which invoices have been presented at least one (ii1) Business Day prior to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including The satisfaction of each of the agreements in Section 2 and the amendments following shall constitute conditions precedent to the Credit effectiveness of this Agreement contained in Section 3) shall become effective on the date on which the following conditions precedent shall be satisfied and each and every provision hereof (such date, date being the “Third Amendment Agreement Effective Date”):
(a) the Administrative Agent Lender shall have received counterparts of this Agreement duly executed and delivered by each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) Borrower and each Guarantor;
(b) Lender shall have received, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):Lender:
(i) a replacement Note, evidencing Revolving Loans, duly executed counterparts of this Amendmentand delivered by each Borrower;
(ii) a duly executed original replacement common stock purchase warrant issued to Lender in the form of Exhibit C hereto (the “New Warrant”),
(iii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Senior Officers of each Loan Party authorizing as Lender may require to establish the execution, delivery identities of and performance of this Amendment and, in verify the case of the Borrower, the borrowings hereunder, authority and a certification of a Responsible Officer capacity of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or Senior Officer thereof authorized to act as a certification by a Responsible Senior Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)thereof;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such evidence as Lender may reasonably require to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing verify that each Loan Party is duly organized or formed formed, validly existing, in good standing (to the extent such concept is applicable in the relevant jurisdiction) and that qualified to engage in business in such Loan Party’s jurisdiction of organization and in each foreign jurisdiction in which such Loan Party is validly existing and required to be qualified, including certified copies of such Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in good standing;
(vi) a favorable opinion of (x) Friedbusiness, Franktax clearance certificates, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;like,
(c) the Third Amendment Effective Date Representations shall except for representations and warranties which would otherwise fail to be true and correct solely as a result of the Third Amendment Effective Date (except occurrence and continuance of the Specified Defaults, the representations and warranties herein and in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation Credit Agreement and warranty the other Loan Documents shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that (except where any Third Amendment Effective Date Representation qualified by or such representation and warranty is already subject to a “material adverse effect”materiality standard, “material adverse change” or similar term or qualification shall be in which case such representation and warranty is true and correct in all respects respects) on and as of the date hereof, as though made on such date (after giving effect except to any the extent that such qualification of materialityrepresentations and warranties relate solely to an earlier day);
(d) no Default or Event of Default (other than the Borrower Specified Defaults) shall have appliedoccurred and be continuing on the date hereof, concurrently with nor shall result from the making consummation of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;transactions contemplated herein; and
(e) no injunction, writ, restraining order or other order of any nature prohibiting, directly or indirectly, the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 consummation of the Credit Agreement, which are hereby waived).
(f) there transactions contemplated herein shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent issued and the Lenders (including the 2018 Incremental First Lien remain in force by any Governmental Authority against any Borrower or any Guarantor or Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered . [***] Omitted pursuant to clause (a) (or (b), if as of a later date) request for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently confidential treatment with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderSEC.
Appears in 1 contract
Sources: Credit Agreement (Sphere 3D Corp)
Conditions Precedent to Effectiveness. This Amendment The obligations of the Term Lenders to make Loans, of the LC Lenders to make the LC Deposits and of the LC Issuers to issue Letters of Credit hereunder (including the agreements in Section 2 and the amendments designation of the Existing Letters of Credit as Letters of Credit hereunder) is subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, in each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each case where applicable properly executed by a Responsible Officer of the signing Loan Party andParty, in dated the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and the case of clause (vi) below, the Collateral Agent):Lenders:
(i) executed counterparts a counterpart of this AmendmentAgreement signed on behalf of the Borrower;
(ii) such certificates of resolutions or authorizations other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party authorizing as the executionAdministrative Agent may reasonably request to evidence the identity, delivery authority and performance capacity of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Documents to which such Loan Party that such resolutions is a party or is to be a party, except to the extent the failure to do so could not, individually or in the aggregate, reasonably be expected to have not been modified, rescinded or amended and are in full force and effecta Material Adverse Effect;
(iii) either such documents and certifications as the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes Administrative Agent may reasonably request to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viiv) a favorable opinion of (x) FriedSkadden, FrankArps, HarrisSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties Parties, addressed to each Agent, each Lender and each LC Issuer and dated the Closing Date, and covering such matters as the Administrative Agent may reasonably request;
(yv) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia a favorable opinion of such local counsel to the Loan Parties, in each case addressed to each Agent, each Lender and each LC Issuer and dated the Third Amendment Effective Closing Date, addressed and covering such matters concerning the Loan Parties and the Loan Documents, as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by any Loan Party and the validity against any Loan Party of the Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate of a Responsible Officer of the Borrower certifying that the conditions specified in clauses (c) and (d) of this Article IV have been satisfied;
(viii) a certificate from the chief financial officer of the Borrower attesting to the Administrative AgentSolvency of the Loan Parties before and after giving effect to the Transactions;
(ix) a certificate from the chief financial officer of the Borrower to the effect that, after giving effect to the Transactions to be consummated on the Closing Date, the Collateral Agent, the 2018 Incremental First Lien Lender Borrower and the LendersSubsidiaries shall have at least $70,000,000 of unrestricted cash and Cash Equivalents;
(x) a certified copy of the 2013 Supplemental Indenture, duly executed by the parties thereto, which shall be consistent with the Exchange Offer Circular and otherwise be in form and substance reasonably satisfactory to the Administrative Agent and which shall have become or shall simultaneously become effective in accordance with the Collateral terms of the 2013 Original Indenture;
(xi) a certified copy of the 2013 New Indenture, duly executed by the parties thereto, which shall be consistent with the Exchange Offer Circular and otherwise be in form and substance reasonably satisfactory to the Administrative Agent;
(viixii) a customary certificatenotice of borrowing under Section 2.02;
(xiii) a Perfection Certificate, substantially together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the form jurisdictions contemplated by the Perfection Certificate and copies of Exhibit J the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Credit Agreement from Administrative Agent that the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, Liens indicated by such financing statements are SolventPermitted Liens or have been released; and
(viiixiv) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying evidence that the conditions precedent set forth in Sections 4(c)commitments under the Existing Credit Agreement shall have been, 4(g) or shall substantially concurrently be, terminated, all loans and 4(j) other amounts outstanding thereunder shall have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreementbeen, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment or shall substantially concurrently be, paid in full of and all Liens securing the Existing Term Loans pursuant to obligations thereunder and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loanunder any related agreements shall have been, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;or shall substantially concurrently be, released.
(b) The Guarantee and Collateral Requirement (other than the Borrower requirements set forth in clauses (e), (f) and (g) of the definition of such term) shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;been satisfied.
(c) The Borrower (i) shall have accepted, or substantially concurrently shall accept, for exchange all of the Third Amendment Effective Date Representations 2013 Original Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and issued 2013 New Notes in exchange therefor and (ii) shall have received the Requisite Consents (as defined in the Exchange Offer Circular).
(i) The representations and warranties of the Borrower and each other Loan Party contained in Article V or in any other Loan Document shall be true and correct in all material respects on and as of the Third Amendment Effective Date (Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in the which case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty they shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be)such earlier date; provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(dii) the Borrower no Default shall have applied, concurrently with the occurred and be continuing or would result from such proposed making of the 2018 Incremental First Lien Term Loan, Loans or application of the proceeds therefrom or from the issuance of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount Letters of all Existing Term Loans outstanding on the Third Amendment Effective Date;Credit.
(e) The Lenders shall have received the financial statements referred to in Section 5.05.
(f) The Lenders shall have received financial projections of the Borrower and its Subsidiaries for the years 2007 through 2010, in form and substance satisfactory to the Lenders.
(g) The Administrative Agent shall have received:received evidence that the insurance required by Section 6.08 and by the Guarantee and Collateral Agreement is in effect.
(h) All fees required to be paid to the Agents and the Arrangers on or before the Closing Date shall have been paid. All costs and expenses (including legal fees and expenses, title premiums, survey charges and recording taxes and fees) required to be paid to the Agents and the Arrangers shall have been paid to the extent due and invoiced.
(i) at least three Business Days prior There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or, to the Third Amendment Effective Dateknowledge of the Borrower, threatened before any Governmental Authority or arbitrator that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(j) All material governmental authorizations and all third party consents and approvals necessary in connection with the Transactions shall have been obtained and shall remain in effect.
(k) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations. Notwithstanding the foregoing, including if the PATRIOT ActBorrower shall have used commercially reasonable efforts to procure and deliver, as is reasonably requested in writing by but shall nevertheless be unable to deliver, any mortgages, foreign pledge agreements and control agreements required to perfect Liens on the Administrative Agent at least ten (10) business days prior Collateral, or any related lien searches, agreements of third parties or documents from public officials, such delivery shall not be a condition precedent to the Third Amendment Effective Date; and
(ii) for obligations of the account of each Lender (as defined in Term Lenders, the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid LC Lenders or the LC Issuers hereunder on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Closing Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which but shall not be required to be prepared accomplished as provided in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien LenderSection 6.18.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly a fully executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):copy hereof.
(ib) executed counterparts of All necessary consents and approvals to this Amendment;Amendment shall have been obtained.
(iic) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis Immediately after giving effect to the Transactionsthis Amendment, are Solvent; andno Default or Event of Default shall have occurred and be continuing. NY-2410437
(viiid) a certificateImmediately after giving effect to this Amendment, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent representations and warranties set forth in Sections 4(c)this Amendment, 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, as amended by this Amendment, and after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interestshereto, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., the other Loan Documents to which it is a Delaware corporation;
party (ci) the Third Amendment Effective Date Representations that is qualified by materiality shall be true and correct as of the Third Amendment Effective Date correct, and (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or periodii) that is not qualified by materiality, such representation and warranty shall be true and correct in all material respects respects, in each case, on and as of such date as if made on and as of such date, except to the respective date or for the respective periodextent any such representation and warranty expressly relates to an earlier date, as the in which case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification such representation and warranty shall be have been true and correct in all material respects (after giving effect to any or all respects, as applicable) as of such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;earlier date.
(e) The Borrower shall have paid to the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) immediately available funds for the account of each Lender (as defined in that executes and becomes party to this Amendment on or prior to the Credit Agreement) with First Amendment Effective Date, an Existing Term Loan all interest accrued but unpaid amendment fee equal to 0.075% of such ▇▇▇▇▇▇’s Revolving Commitment on the Existing Term Loans through First Amendment Effective Date. Such fee will not be subject to any set-off or adjustment, and shall be fully earned on the Third First Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived)and nonrefundable once paid.
(f) there shall have been paid (i) to the Administrative Agent, for the account of The Lenders and the Administrative Agent and the Lenders shall have received all expenses for which invoices have been presented (including the 2018 Incremental First Lien Lenderreasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third First Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Stitch Fix, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments The effectiveness of this Agreement is subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction or waiver of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien LenderParty, each dated as of the Third Amendment Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in and each of the case of clause (vi) below, the Collateral Agent):Lenders:
(i) executed counterparts of this AmendmentAgreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) resolutions or authorizations a Revolving Note executed by the Borrower(s) in favor of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and Lender requesting a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectNote;
(iii) either the Organization Documents such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party or a certification by Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)is a party;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes such documents and certifications as the Administrative Agent may reasonably require to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing evidence that each Loan Party is duly organized or formed formed, and that each Loan Party is validly existing and in good standingstanding in its jurisdiction of organization;
(v) a favorable opinion of Latham & Watkins LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion certificate of a Responsible Officer of the Parent Borrower either (xA) Friedattaching copies of all consents, Franklicenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Parties Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (yB) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLPstating that no such consents, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agentlicenses or approvals are so required;
(vii) a customary certificatecertificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions precedent specified in Sections 4.02(a) and (b) have been satisfied, substantially (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the form of Exhibit J aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the Credit knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement from or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of Holdingsthe Parent Borrower certifying that, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactionstransactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment the financial statements referenced in full of the Existing Term Loans pursuant to Sections 5.05(a) and in accordance with Section 2.03(a)(i) of the Credit Agreement; and(b);
(x) a Committed Loan Notice with respect to Compliance Certificate signed by the 2018 Incremental First Lien Term Loanchief executive officer, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (chief financial officer, treasurer or equivalent) certificates evidencing 65% controller of the voting Equity InterestsParent, in form and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is detail reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) satisfactory to the Administrative Agent, for demonstrating that on the account Closing Date the Loan Parties are in compliance with all financial covenants set forth in Section 7.10 on a pro forma basis (giving effect to all Credit Extensions to occur on the Closing Date) as of the last day of the fiscal quarter ending June 30, 2024;
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent and the Lenders (as requested by the Lenders) of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including the 2018 Incremental First Lien Lendera Beneficial Ownership Certification, if requested), as applicableand other customary requirements, all fees and, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent required such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by Section 10.04 of the Credit AgreementAdministrative Agent, expenses (including reasonable out-of-pocket the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangersextent invoiced at least two Business Days prior to or on the Closing Date, all other compensation separately agreed plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be paid on incurred by it through the Third Amendment Effective Date;
closing proceedings (g) since April 4provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, 2018for purposes of determining compliance with the conditions specified in this Section 4.01, there each Lender that has signed this Agreement shall be deemed to have been no Material Adverse Effect (as defined in consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Acquisition Agreement);
(h) the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as notice from such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days Lender prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments proposed Closing Date specifying its objection thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section 2 and the amendments to the Credit Agreement contained in Section 3) shall become not be effective on the date on which until each of the following conditions precedent shall be satisfied (such date, have been fulfilled to the “Third Amendment Effective Date”):satisfaction of the Administrative Agent or waived by the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
(b) All necessary consents and approvals required in connection with the execution and performance of this Amendment, and the consummation of the transactions contemplated hereby, shall have been obtained.
(c) Immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) The representations and warranties set forth in Section 5 of this Amendment shall be true and correct on the Third Amendment Effective Date.
(e) The Administrative Agent shall have received (i) the Third Amendment Fee Letter, duly executed and delivered by the Borrower, and (ii) all amounts required to be paid pursuant to the Third Amendment Fee Letter.
(f) The Administrative Agent shall have received the results of a recent lien search in each of the followingLoan Parties’ jurisdictions of organization and each other jurisdiction reasonably required by the Administrative Agent, each of which and such searches shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer reveal no Liens on any of the signing assets of the Loan Party andParties, in except for Liens permitted by Section 7.3 of the case of clause Amended Credit Agreement.
(g) The Administrative Agent shall have received (i) belowa certificate of each Loan Party, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C to the Amended Credit Agreement, with appropriate insertions and attachments, including (orA) the Operating Documents of such Loan Party certified, in the case of certificates formation documents, as of governmental officials, a recent date before by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Third Amendment and the other Loan Documents to which such Loan Party is party, and (C) the names, titles, and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, (ii) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization, and (iii) certificates of foreign qualification from each jurisdiction where the failure of a Loan Party to be qualified could reasonably be expected to have a Material Adverse Effect.
(h) The Administrative Agent shall have received a Collateral Information Certificate substantially in the form of Exhibit J to the Amended Credit Agreement executed by the Borrower and dated as of the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent):.
(i) The Administrative Agent shall have received the executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable legal opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the LendersBorrower, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;
(e) the Administrative Agent shall have received:
(i) at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10) business days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) to the Arrangers, all other compensation separately agreed to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender.
Appears in 1 contract
Sources: Credit Agreement (Fastly, Inc.)
Conditions Precedent to Effectiveness. This Amendment (including the agreements in Section The effectiveness of Sections 1 and 2 and the amendments of this Agreement shall be subject to the Credit Agreement contained in Section 3) shall become effective on the date on which satisfaction of each of the following conditions precedent (the first date on which all such conditions shall be satisfied (such dateor waived, the “Third Amendment Effective Date”):
(a) the Administrative Agent shall have received from the Borrower and each of the followingRequired Lenders a duly executed original (or, each of which shall be originals if elected by the Administrative Agent, an executed facsimile or facsimiles (PDF followed promptly by originalsan executed original) unless otherwise specified, counterpart of this Agreement;
(b) the Administrative Agent shall have received from each properly Guarantor party thereto a duly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender, each dated as of the Third Amendment Effective Date original (or, in if elected by the case Administrative Agent, an executed facsimile or PDF followed promptly by an executed original) signature page to the Guarantor Acknowledgment and Consent attached hereto as Exhibit A (the “Guarantor Acknowledgment and Consent”);
(c) the Administrative Agent shall have received a certificate of certificates of governmental officialseach Loan Party, a recent date before dated the Third Amendment Effective Date) , executed by the Secretary or equivalent officer of such Loan Party and each in form and substance reasonably satisfactory to the Administrative Agent (andAgent, in the case of clause (vi) belowwith appropriate insertions and attachments, the Collateral Agent):
including (i) executed counterparts of this Amendment;
(ii) resolutions or authorizations of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) either the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Operating Documents of such Loan Party since Party, (ii) the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable);
(iv) either incumbency certificates of each Loan Party relevant board resolutions or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates written consents of such Loan Party adopted by such Loan Party for the purpose of authorizing such Loan Party to enter into and perform this Agreement, the Guarantor Acknowledgment and Consent and any other agreements, certificates and other documents required to be delivered by such Loan Party in connection with this Agreement or the amendments contemplated herein (collectively, the “Amendment Documents” required to be delivered by such Loan Party), (iii) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Amendment Documents on behalf of such Loan Party, and (iv) a good standing certificate for such Loan Party certified as of a recent date by the Second Amendment Effective Dateappropriate Governmental Authority of such Loan Party’s respective jurisdiction of organization;
(vd) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable the Administrative Agent shall have received the executed legal opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to General Counsel of the Loan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the LendersBorrower, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% of the voting Equity Interests, and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as of the Third Amendment Effective Date (except in the case of any Third Amendment Effective Date Representation which expressly relates to a given date or period, addressing such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, matters as the case Administrative Agent may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality);
(d) the Borrower shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Datereasonably specify;
(e) the Administrative Agent shall have received:
received from the Borrower an amendment fee equal to 0.35% of the sum of (i) at least three Business Days prior the aggregate amount of the Revolving Commitments (after giving effect to any reduction of the Third Amendment Effective Dateaggregate amount of the Revolving Commitments effected pursuant to this Agreement) of each Required Lender that has executed this Agreement plus (ii) the aggregate principal amount of the outstanding Term Loans of each Required Lender that has executed this Agreement, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing which amendment fee will be allocated by the Administrative Agent at least ten (10) business days prior to such Required Lenders on a pro forma basis in accordance with the Third Amendment Effective Date; andrespective Revolving Commitments of, and outstanding Term Loans held by, each such Required Lender. Such amendment fee shall be fully earned on the date paid and shall not be refundable for any reason;
(iif) for the account Borrower shall have paid all costs and expenses of each Lender (as defined the Administrative Agent then due in the Credit Agreementaccordance with Section 6(d) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under hereof and Section 3.05 10.5 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, such costs and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) have been invoiced to the Arrangers, all other compensation separately agreed Borrower prior to be paid on the Third Amendment Effective Date;
(g) since April 4, 2018, there the Administrative Agent shall have been no Material Adverse Effect received from the Borrower, the Acquired Business and each Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile or PDF followed promptly by an executed original) counterpart of that certain side letter agreement, of near or even date herewith, executed and delivered by the signatories thereto for the purpose of designating the “Excluded Patents” (as defined in the Acquisition Guarantee and Collateral Agreement);, as amended by this Agreement) of the Acquired Business; and
(h) on the Arrangers shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days prior to the Third Amendment Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933this Agreement, as amended, or include adjustments for purchase accounting);
(i) prior to, the representations and warranties contained in Section 5 of this Agreement shall be true and correct and (ii) no Default or substantially concurrently with the initial funding Event of the 2018 Incremental First Lien Term Loan, the Refinancing Default shall have been consummated occurred and the Contribution shall have been made; and
(j) the Acquisition shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lendercontinuing.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment (including The effectiveness of the agreements in Section 2 amendment and restatement of the amendments Existing Credit Agreement is subject to the Credit Agreement contained in satisfaction (or waiver pursuant to Section 310.01) shall become effective on the date on which of the following conditions precedent shall be satisfied (such date, the “Third Amendment Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles e-mailed copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of clause (i) below, by the 2018 Incremental First Lien Lender), each dated as of the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) ), and each in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of clause (vi) below, the Collateral Agent)::
(i) executed counterparts of (x) this AmendmentAgreement and (y) the Company Guaranty;
(ii) resolutions or authorizations Notes executed by the Borrowers in favor of each Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and a certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effectLender requesting Notes;
(iii) either the Organization Documents certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party or a certification by evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of each in connection with this Agreement and the other Loan Party that there have been no changes Documents to the Organization Documents of which such Loan Party since the Closing Date, the New Incremental First Lien Term Commitments Effective Date and/or the Second Amendment Effective Date (as applicable)is a party;
(iv) either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Second Amendment Effective Date;
(v) good standing certificates documents and certifications evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standingstanding and qualified to engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) as to the satisfaction of the conditions set forth in Section 4.01(b) and (c) and (B) setting forth the Company’s Debt Rating as of the Effective Date; and
(vi) a favorable opinion opinions of (xi) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Esq., Senior Vice President, Chief Legal Officer and Secretary of the Company, (ii) Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Loan Parties and (yiii) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia Swiss counsel to the Loan PartiesDesignated Borrower, in each case dated the Third Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2018 Incremental First Lien Lender and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent; and
(viii) a certificate, dated as of the Third Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 4(c), 4(g) and 4(j) have been satisfied as of the Third Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2018 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2018 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Third Amendment Effective Date;.
(b) the Borrower shall have delivered any pledged stock (or equivalent) certificates evidencing 65% All of the voting Equity Interests, representations and 100% of non-voting Equity Interests, of GYP Holdings IV Corp., a Delaware corporation;
(c) the Third Amendment Effective Date Representations shall be true and correct as warranties of the Third Amendment Effective Date (except Loan Parties contained in the case Article V of any Third Amendment Effective Date Representation which expressly relates to a given date or periodthis Agreement and in each other Loan Document, such representation and warranty shall be true and correct in all material respects except that all representations and warranties that are qualified by materiality are true and correct in all respects, in each case, on and as of the respective date Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case shall have been true and correct in all material respects (or for the respective period, as the case may be); provided, that any Third Amendment Effective Date Representation qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification shall be true and correct in all respects (after giving effect to for any such qualification representations or warranties that are qualified by materiality) as of materiality);such earlier date.
(c) No Default exists, or would result from, the occurrence of the Effective Date.
(d) All accrued and invoiced fees and expenses of the Borrower Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have applied, concurrently with the making of the 2018 Incremental First Lien Term Loan, the proceeds of the 2018 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Third Amendment Effective Date;been paid.
(e) Upon the Administrative Agent shall have received:
(i) reasonable request of any Lender made at least three 10 Business Days prior to the Third Amendment Effective DateDate (i) the Borrowers shall have provided to such Lender, all and such Lender shall be reasonably satisfied with the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation, the PATRIOT ActAct and the AML Legislation, as is reasonably requested in writing by the Administrative Agent each case at least ten (10) business days 5 Business Days prior to the Third Amendment Effective Date; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan all interest accrued but unpaid on the Existing Term Loans through the Third Amendment Effective Date (without payment for any loss, cost or expense which may be due to such Lender under Section 3.05 of the Credit Agreement, which are hereby waived).
(f) there shall have been paid (i) to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including the 2018 Incremental First Lien Lender), as applicable, all fees and, to the extent required by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Third Amendment Effective Date and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, at least 5 Business Days prior to the ArrangersEffective Date, all other compensation separately agreed to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be paid on satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Third Amendment Effective Date;
(g) since April 4, 2018, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement);
(h) the Arrangers Administrative Agent shall have received (a) an audited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as notice from such terms are defined in the Acquisition Agreement) for the fiscal year ended on December 31, 2017, (b) an unaudited consolidated statement of financial position, consolidated statements of income and comprehensive income, consolidated statement of changes in partners’ equity and consolidated statement of cash flows of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) for each fiscal quarter of Master LP and the Subsidiaries (as such terms are defined in the Acquisition Agreement) ended after December 31, 2017 and at least 45 days Lender prior to the Third Amendment proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Company and the Lenders of the occurrence of the Effective Date, and (c) a pro forma consolidated balance sheet and related statement of income of the Borrower as of the date of the consolidated balance sheet and income statement delivered pursuant to clause (a) (or (b), if as of a later date) for the twelve-month period ending on such date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (which shall not be required to be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting);
(i) prior to, or substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, the Refinancing shall have been consummated and the Contribution shall have been made; and
(j) the Acquisition notice shall be consummated pursuant to the Acquisition Agreement, substantially concurrently with the initial funding of the 2018 Incremental First Lien Term Loan, without giving effect to any amendments thereto, waivers thereof, supplements thereto or consents with respect thereto that are materially adverse to the Arrangers or the 2018 Incremental First Lien Lender in their capacities as such, without the consent of the 2018 Incremental First Lien Lender, such consent not to be unreasonably withheld or delayed; provided that (a) any change or modification to the definition of “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) shall be deemed materially adverse to the Arrangers conclusive and the 2018 Incremental First Lien Lender and (b) neither the reduction of the Purchase Price (as defined in the Acquisition Agreement) nor the increase in the Purchase Price (to the extent funded with the proceeds of an Equity Offering (as defined in the Amended Credit Agreement) and/or the proceeds of amounts borrowed under the ABL Facility) shall be deemed materially adverse to the Arrangers and the 2018 Incremental First Lien Lenderbinding.
Appears in 1 contract