Conditions of Restatement. The amendment and restatement of the Existing Credit Agreement pursuant hereto shall become effective on and as of the date (the “Restatement Effective Date”), which shall occur on or prior to May 20, 2014, on which each of the following conditions precedent shall have been satisfied or duly waived: (a) The Administrative Agent’s receipt 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, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement; (ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Restatement Effective Date; (iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party, as applicable, thereto, together with: (A) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) [reserved]; and (C) evidence that all other actions, recordings and filings required by the Collateral Document as of the Restatement Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (iv) 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Restatement Effective Date; (v) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties substantially in the form of Exhibit H; (vi) [reserved]; (vii) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, on the Restatement Effective Date after giving effect to the Transaction, from the Chief Financial Officer or other officer with equivalent duties of the Borrower; (viii) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named; (ix) [reserved]; (x) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension; (xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties; and (xii) for any Mortgaged Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”), (A) the Borrower’s written acknowledgment of receipt of written notification from the Collateral 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 National Flood Insurance Program and (B) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as mortgagee and sole loss payee on behalf of the Lenders. (b) All fees and expenses required to be paid hereunder and invoiced on or before the Restatement Effective Date shall have been paid in full in cash or will be paid on the Restatement Effective Date out of the initial Credit Extension. (c) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to any qualification), (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Restatement Effective Date (the “Unaudited Financial Statements”), which financial statements shall be prepared in accordance with GAAP, and (iii) the Pro Forma Financial Statements.
Appears in 2 contracts
Samples: Credit Agreement (Catalent, Inc.), Credit Agreement (Catalent Pharma Solutions, Inc.)
Conditions of Restatement. The amendment and restatement of the Existing Credit Agreement pursuant hereto shall become effective on and as of the date (the “Restatement Effective Closing Date”), which shall occur on or prior to May 20November 15, 20142013, on which each of the following conditions precedent shall have been satisfied or duly waived:
(a) Substantially contemporaneously with the Restatement Closing Date and the making of the initial Loans hereunder, all principal of, and interest on, Loans owed to the Existing Lenders and all accrued fees and other amounts payable to the Existing Lenders shall have been paid in full.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originalsdelivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Closing Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this AgreementAgreement and the Guaranty;
(ii) a Note duly executed by the Borrower in favor of each Lender that has requested requesting a Note at least two Business Days in advance of the Restatement Effective DateNote;
(iii) an amended and restated security agreement, in substantially the form of Exhibit G hereto (together with each Collateral Document set forth on Schedule 1.01A required other security agreement and security agreement supplement delivered pursuant to be executed on Section 6.12, in each case as amended, the Restatement Effective Date as indicated on such schedule“Security Agreement”), duly executed by each Loan Party, as applicable, thereto, together with:
(A) , to the extent not previously already delivered to the Collateral Agent under the Existing Credit AgreementAdministrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank;
(Biv) [reserved]; and
(C) evidence that all other actionscopies of proper financing statements, recordings and filings required by to be filed on or after the Collateral Document as day of the Restatement Effective Date initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to satisfy perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for described in a manner reasonably satisfactory to the Administrative AgentSecurity Agreement;
(ivv) 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Restatement Effective Date;
(v) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties substantially in the form of Exhibit Hparty;
(vi) [reserved]such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (A) is duly organized or formed, including certified true and correct copies of the charter of each Loan Party, and each amendment thereto, as in effect on the Restatement Closing Date, and (B) is validly existing, in good standing 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 that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of Cravath, Swaine & Xxxxx LLP, special counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) favorable opinions of local counsel for the Loan Parties in the jurisdictions set forth on Exhibit J, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ix) a favorable opinion of general counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(x) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that since September 4, 2013, no fact, event, condition, change, occurrence or effect shall have occurred which has had or would reasonably be expected to have a Company Material Adverse Effect;
(xii) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, on the Restatement Effective Date before and after giving effect to the Transaction, from the Chief Financial Officer or other officer with equivalent duties of the Borrower;, in substantially the form of Exhibit I hereto; and
(viiixiii) to certified copies of each of the extent not previously Bushnell Stock Purchase Agreement and the Senior Notes Documents, duly executed by the parties thereto, together with all agreements, instruments and other documents delivered to the Collateral Agent under the Existing Credit Agreement, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named connection therewith as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) [reserved];
(x) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties; and
(xii) for any Mortgaged Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”), (A) the Borrower’s written acknowledgment of receipt of written notification from the Collateral 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 National Flood Insurance Program and (B) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as mortgagee and sole loss payee on behalf of the Lendersrequest.
(bc) All The Borrower shall have paid, prior to the Restatement Closing Date, (i) all fees and expenses (including the reasonable fees and expenses of Shearman & Sterling LLP) required to be paid on the Restatement Closing Date pursuant to the Fee Letters and (ii) all other fees and expenses required to be paid hereunder and invoiced on or before the Restatement Effective Date pursuant to Section 10.04(a) for which invoices shall have been paid in full in cash or will be paid on presented to the Borrower at least 3 days prior to the Restatement Effective Date out of the initial Credit ExtensionClosing Date.
(cd) Since September 4, 2013, no fact, event, condition, change, occurrence or effect shall have occurred which has had or would reasonably be expected to have a Company Material Adverse Effect.
(e) The Administrative Agent Bushnell Acquisition shall have received (i) been consummated, or shall be consummated substantially concurrently with the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to any qualification), (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows initial funding of the Borrower and its consolidated Subsidiaries for Facilities, in each subsequent fiscal quarter ended at least forty-five (45) days before the Restatement Effective Date (the “Unaudited Financial Statements”), which financial statements shall be prepared case in accordance with GAAPthe Bushnell Stock Purchase Agreement, without giving effect to any waiver or amendment thereof or consent thereunder, in each case, that is materially adverse to the interests of the Lenders, without the prior written consent of the Arrangers; provided that (A) any reduction in the purchase price and (iiiB) any change to the Pro Forma Financial Statementsdefinition of Company Material Adverse Effect shall in each case be deemed to be materially adverse to the interests of the Lenders (it being understood and agreed that any decrease in the purchase price of less than 10% shall not in and of itself be deemed to be a modification which is materially adverse to the interests of the Lenders).
Appears in 1 contract
Conditions of Restatement. The amendment and restatement of the Existing Credit Agreement pursuant hereto shall become effective on and as the obligation of the date (Bank to make the “Restatement Effective Date”), which shall occur on or prior Additional Loans is subject to May 20, 2014, on which each of the following conditions precedent shall have been satisfied or duly waivedfollowing:
(a) The Administrative Agent’s receipt Bank shall have received from the Fund a certificate of the following, each of which shall be originals its Secretary or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:Assistant Secretary as to
(i) executed counterparts resolutions of its board of trustees then in full force and effect authorizing the execution, delivery and performance of this Agreement, the Note and each other Credit Document to be executed by it;
(ii) a the incumbency and signatures of those of its officers or agents authorized to act with respect to this Agreement, the Note and each other Credit Document executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Restatement Effective Dateit;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Restatement Effective Date Fund's valid existence as indicated on such schedule, duly executed evidenced by each Loan Party, as applicable, thereto, together with:
(A) a certificate issued by the Secretary of State of The Commonwealth of Massachusetts and appended to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [reserved]relevant certificate of its Secretary or Assistant Secretary; and
(C) evidence that all other actions, recordings and filings required by the Collateral Document as of the Restatement Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Restatement Effective Date;
(v) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties substantially in the form of Exhibit H;
(vi) [reserved];
(vii) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, on the Restatement Effective Date after giving effect to the Transaction, from the Chief Financial Officer or other officer with equivalent duties of the Borrower;
(viii) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) [reserved];
(x) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties; and
(xii) for any Mortgaged Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”), (A) the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that the agreements delivered by the Fund pursuant to SECTION 4.1(e) constitute all such Mortgaged Property is agreements between the Fund and the Adviser; upon which certificates the Bank may conclusively rely until they shall have received a Flood Hazard Property and as to whether further certificate from the community in which each Fund cancelling or amending such Flood Hazard Property is located is participating in the National Flood Insurance Program and (B) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as mortgagee and sole loss payee on behalf of the Lendersprior certificate.
(b) All fees and expenses required to be paid hereunder and invoiced on or before the Restatement Effective Date The Bank shall have been paid in full in cash or will be paid on received a Note duly executed and delivered by the Restatement Effective Date out Fund and made payable to the order of the initial Credit ExtensionBank.
(c) The Administrative Agent Bank shall have received (i) an opinion addressed to the Audited Financial Statements and Bank, from Ropes & Gray, xxunsel to the audit report for such financial statements (which shall not be subject to any qualification)Fund, (ii) unaudited consolidated balance sheets and related statements substantially in the form of income, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Restatement Effective Date (the “Unaudited Financial Statements”EXHIBIT 4.1(c), which financial statements the Fund hereby expressly authorizes and instructs such counsel to prepare and deliver.
(d) The Bank shall have received evidence of payment of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with Attorney Costs of the Bank to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute the Bank's reasonable estimate of Attorney Costs incurred or to be prepared in accordance incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Fund and the Bank), including any such costs, fees and expenses then due and payable pursuant to SECTION 8.4.
(e) The Bank shall have received copies of the investment advisory agreement between the Fund and the Adviser, together with GAAPall sub-advisory agreements, and if any.
(iiif) The Bank shall have received copies of the Pro Forma Financial Statementsmost recent prospectus for the Fund.
Appears in 1 contract
Samples: Credit Agreement (Colonial Intermediate High Income Fund)
Conditions of Restatement. The amendment and restatement of the Existing Credit Agreement pursuant hereto shall become effective on and as of the date (the “Restatement Effective Closing Date”), which shall occur on or prior to May 20March 29, 20142007, on which each of the following conditions precedent shall have been satisfied or duly waived:
(a) Substantially contemporaneously with the Restatement Closing Date and the making of the initial Loans hereunder, all principal of, and interest on, Loans owed to the Existing Lenders and all accrued fees and other amounts payable to the Existing Lenders shall have been paid in full.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originalsdelivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Closing Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(ii) a Note duly executed by the Borrower in favor of each Lender that has requested requesting a Note at least two Business Days in advance of the Restatement Effective DateNote;
(iii) an amended and restated security agreement, in substantially the form of Exhibit G hereto (together with each Collateral Document set forth on Schedule 1.01A required other security agreement and security agreement supplement delivered pursuant to be executed on Section 6.12, in each case as amended, the Restatement Effective Date as indicated on such schedule“Security Agreement”), duly executed by each Loan Party, as applicable, thereto, together with, to the extent not already delivered to the Administrative Agent:
(A) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;,
(B) [reserved]; andcopies of proper financing statements, to be filed on or after the day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of the insurance required by the Collateral Document terms of the Security Agreement,
(D) to the extent not previously delivered under the Existing Credit Agreement, executed Assignments of Government Contract Claims and Notices of Assignment of Government Contract Claims with respect to each Assignable Government Contract Claim (remaining as of the Restatement Effective Date Closing Date) in excess of $40,000,000 in effect as of the Restatement Closing Date, in accordance with Section 4(c) of the Security Agreement, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed UCC-3 termination statements);
(iv) to the extent requested by the Administrative Agent and available as of the Restatement Closing Date, Mortgage Modifications covering the Mortgaged Properties, duly executed by the appropriate Loan Party, together with:
(A) to the extent requested by the Administrative Agent in its sole discretion, evidence that counterparts of the Mortgage Modifications have been duly executed, acknowledged and delivered and are in a form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first (subject to Permitted Encumbrances) and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes, if any, and fees have been paid or will be paid upon recordation or filing of the Mortgage Modifications,
(B) to the extent required by the Administrative Agent in its sole discretion, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) or endorsements (including, but not limited to, “date-down” endorsements), updates or confirmations thereof (in respect of Mortgage Policies previously delivered under the Existing Credit Agreement) in form and substance, with endorsements and in amount reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects and encumbrances, excepting Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable,
(C) to the extent required by the Administrative Agent and in any Loan Party’s possession, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated as of a date reasonably satisfactory to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects,
(D) evidence of the insurance required by the terms of the Mortgages, and
(E) such other consents, agreements and confirmations of third parties relating to the Mortgaged Properties or amendments, amendments and restatements, supplements, modifications, updates or confirmations thereof (in respect of the Existing Mortgages) as the Administrative Agent may deem reasonably necessary or desirable and evidence that all other actions that the Administrative Agent may deem reasonably necessary or desirable in order to satisfy create valid first (subject to Permitted Encumbrances) and subsisting Liens on the Collateral and Guarantee Requirement shall property described in the Mortgages have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(ivv) 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (A) is duly organized or formed, including, without limitation, certified true and correct copies of the charter of each Loan Party, and each amendment thereto, as in effect on the Restatement Effective Closing Date, and (B) is validly existing, in good standing 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 that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvii) an a favorable opinion from Xxxxxxx Xxxxxxx of Xxxxxx, Xxxx & Xxxxxxxx LLP, New York special counsel to the Loan Parties, addressed to each Agent and each Lender, as to the matters (including intellectual property matters) set forth in Exhibit J-1;
(viii) to the extent requested by the Administrative Agent, favorable opinions of local counsel for the Loan Parties (i) in jurisdictions in which the Mortgaged Properties are located, including, among other things, opinions with respect to the enforceability and continuing perfection of the Existing Mortgages as modified by the Mortgage Modifications covering the Mortgaged Properties and any related fixture filings, substantially in the form of Exhibit HJ-2 hereto and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if any Mortgage Modifications are delivered after the Restatement Closing Date pursuant to Section 6.15 hereof, in jurisdictions in which the Loan Parties party to such Mortgage Modifications are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the execution and delivery of such Mortgage Modifications, in form and substance reasonably satisfactory to the Administrative Agent;
(viix) [reserved]a favorable opinion of general counsel to the Borrower, as to the matters set forth in Exhibit J-3;
(viix) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since March 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xii) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, on the Restatement Effective Date before and after giving effect to the Transaction, from the Chief Financial Officer or other officer with equivalent duties of the Borrower, in substantially the form of Exhibit I hereto;
(viiixiii) to the extent not previously delivered requested by the Administrative Agent and available to the Collateral Agent under Borrower and its Subject Subsidiaries, any currently relevant environmental assessment report, as to any Environmental Liabilities to which any Loan Party or any of its Subsidiaries may be subject, and the Existing Credit AgreementLenders shall be satisfied that such Environmental Liabilities were adequately reflected in the Borrower’s financial reserves shown on the financial statements included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for such Environmental Liabilities (including as may have been disclosed in any filing with the SEC prior to the date of the Offering Memorandum);
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) [reserved];
(x) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Partieseffect; and
(xiixv) for any Mortgaged Property located in an area designated by such financial, business and other information regarding the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”), (A) the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Mortgaged Property is a Flood Hazard Property Borrower and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program its Subsidiaries and (B) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral assurances, certificates, documents, consents or opinions as any Agent and naming the Collateral Agent as mortgagee and sole loss payee on behalf of the Lendersor any Lender reasonably may require.
(bc) All The Borrower shall have paid, prior to the Restatement Closing Date, (i) all fees and expenses (including the reasonable fees and expenses of Shearman & Sterling LLP) required to be paid on the Restatement Closing Date pursuant to the Fee Letter, and (ii) all other fees and expenses required to be paid hereunder and invoiced on or before the Restatement Effective Date pursuant to Section 10.04(a) for which invoices shall have been paid in full in cash or will be paid on presented to the Borrower prior to the Restatement Effective Date out of the initial Credit ExtensionClosing Date.
(cd) The Administrative Agent There shall have received exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any Governmental Authority or arbitrator that (i) the Audited Financial Statements and the audit report for such financial statements (which shall not could be subject reasonably likely to any qualification)have a Material Adverse Effect, or (ii) unaudited consolidated balance sheets and related statements purports to affect the legality, validity or enforceability of income, stockholders’ equity and cash flows any Loan Document or the consummation of the Borrower Transaction.
(e) All governmental authorizations and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five all third party consents and approvals necessary in connection with the Transaction shall have been obtained (45without the imposition of any conditions that are not acceptable to the Lenders) days before the Restatement Effective Date (the “Unaudited Financial Statements”), which financial statements and shall remain in effect; and no Law shall be prepared applicable in accordance with GAAPthe judgment of the Lenders, and (iii) in each case that restrains, prevents or imposes materially adverse conditions upon the Pro Forma Financial StatementsTransaction 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.
Appears in 1 contract
Conditions of Restatement. The amendment effectiveness of this Agreement to amend and restatement of restate the Existing Credit Agreement pursuant hereto shall become effective on Agreement, and as the obligation of the date (the “Restatement Effective Date”), which shall occur on or prior each Lender to May 20, 2014, on which each make its Loan hereunder is subject to satisfaction of the following conditions precedent shall have been satisfied or duly waivedprecedent:
(a) The Administrative 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 Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender that has requested requesting a Note at least two Business Days in advance of the Restatement Effective DateNote;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party, as applicable, thereto, together with:
(A) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [reserved]; and
(C) evidence that all other actions, recordings and filings required by the Collateral Document as counterparts of the Restatement Effective Date that Security Documents (other than the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative AgentMortgages described below);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Lenders 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Restatement Effective Dateparty;
(v) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLPsuch documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, New York and that each of the Borrower and the other Loan Parties is validly existing, in good standing 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 that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) favorable opinions of counsel to the Loan Parties substantially from counsel acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as to the matters and in form and substance satisfactory to the form of Exhibit H;
(vi) [reserved]Administrative Agent;
(vii) a certificate attesting to of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the Solvency execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan PartiesDocuments to which it is a party, on and such 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 consolidated basiscertificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(a) and (b) have been satisfied, on the Restatement Effective Date and (B) that there has been no event or condition since December 31, 2010 (after giving effect to the Transactionacquisition of VOC Kansas on a pro forma basis) that has had or could be reasonably expected to have, from either individually or in the Chief Financial Officer or other officer with equivalent duties of the Borroweraggregate, a Material Adverse Effect;
(viiiix) to the extent not previously delivered to the Collateral Agent under the Existing Credit Agreement, evidence certificates evidencing that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect in such types and that amounts as shall be reasonably satisfactory to the Lenders, together with endorsements naming the Administrative Agent has been named as additional insured on liability policies and loss payee from property and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) [reserved]casualty policies;
(x) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of Credit Application, as applicable, relating counsel to the initial Credit Extension;Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees (including all filing and recording fees and taxes), charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(xid) copies The Lenders shall have received satisfactory evidence that the Administrative Agent (on behalf of the Lenders) shall have a recent valid and perfected first priority Lien and judgment search security interest in each jurisdiction Collateral including Mortgages covering Proved Oil and Gas Properties that have a Recognized Value of not less than 70% of the Recognized Value of all Proved Oil and Gas Properties owned by the Loan Parties on the Closing Date and included in the Borrowing Base in effect on the Closing Date, duly executed and delivered by the applicable Loan Parties, together with such other assignments, conveyances, agreements and other writings as may be reasonably requested by the Collateral Agent with respect Administrative Agent, including, without limitation, UCC financing statements and/or amendments to financing statements, in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Administrative Agent’s (or its counsel’s) completion of a review of title to Borrowing Base Properties representing not less than 70% of the Recognized Value of all Proved Oil and Gas Properties owned by the Loan Parties on the Closing Date, which review shall not have revealed any condition or circumstance that would reflect that the representations and warranties contained in Section 5.17 hereof are inaccurate in any material respect.
(f) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(g) The Lenders shall not have become aware after December 31, 2010 of any information or other matter affecting the Loan Parties; and, the Closing Transactions or the transactions contemplated hereby that is inconsistent in a material and adverse manner with any such information or other matter disclosed in writing to the Lenders prior to such date.
(xiih) for All material governmental and third party approvals necessary in connection with the Closing Transactions, the financing contemplated hereby and the continuing operations of the Borrower and its Subsidiaries shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any Mortgaged Property located in an area designated action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Federal Emergency Management Agency as having special flood Closing Transactions or mud slide hazards the financing thereof.
(a “Flood Hazard Property”), (Ai) the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent The Lenders shall have received certification as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether Solvency of the community in which each such Flood Hazard Property is located is participating in Loan Parties from the National Flood Insurance Program and (B) copies chief financial officer of the Borrower’s application for a flood insurance policy plus proof .
(j) The legal, corporate, and capital structure of premium paymentthe Borrower and its subsidiaries upon the Closing Date shall be consistent with the anticipated legal, a declaration page confirming that flood insurance has been issuedcorporate, or such other evidence and capital structure of flood insurance satisfactory the Borrower and its Subsidiaries (after giving effect to the Collateral Agent and naming transactions on the Collateral Agent Closing Date) as mortgagee and sole loss payee on behalf described in the Oil Trust Prospectus, with such modifications thereto that are not materially adverse to the interests of the Lenders.
(bk) All fees The Lenders shall have received the Audited Financial Statements.
(l) The Administrative Agent shall have received, in form and expenses required substance reasonably satisfactory to it, all environmental reports, accounting reports, Reserve Reports, and such other reports, audits or certifications as it may reasonably request.
(m) The outstanding principal balance of loans under the Existing Credit Agreement, other than the $24,000,000 of Existing Loans renewed and extended hereunder, shall have been repaid in full, all letters of credit under the Existing Credit Agreements have been terminated and all commitments under the Existing Credit Agreement have been terminated;
(n) The cash margin posted by VOC Kansas to secure its Swap obligations shall have been released, and the intercompany loan made by the Borrower to VOC Kansas shall have been repaid in full;
(o) After giving effect to the consummation of the Closing Transactions, the Borrower shall have demonstrated that it will have at least $6,000,000 in unrestricted cash liquidity.
(p) The Borrower shall have delivered to the Administrative Agent true, correct and complete copies of the Closing Transaction Documents, which shall be paid hereunder in form and invoiced substance satisfactory to the Administrative Agent. The Closing Transactions under clauses (i), (ii) and (iii) in the definition of the Closing Transactions shall have been consummated in compliance with the terms and conditions thereof and all conditions precedent to such consummation will be fully satisfied.
(q) The Closing Date shall have occurred on or before the Restatement Effective Date shall have been paid in full in cash or will be paid on the Restatement Effective Date out of the initial Credit ExtensionJune__, 2011.
(cr) The representations and warranties of the Borrower and each other Loan Party contained in Article V or 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 and as of the date of the Loan.
(s) No Default shall exist, or would result from the Loan or from the application of the proceeds thereof.
(t) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to any qualification), (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Restatement Effective Date (the “Unaudited Financial Statements”), which financial statements shall be prepared a Loan Notice in accordance with GAAPthe requirements hereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, and (iii) for purposes of determining compliance with the Pro Forma Financial Statementsconditions 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 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
