Conditions of the Closing Date. The obligation of the Lender to fund the initial Borrowing hereunder is subject to satisfaction (or waiver in accordance with Section 9.01) of the following conditions precedent: (a) The Lender’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 to the extent required to be executed, 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 Lender: (i) executed counterparts of this Agreement, in the number requested by the Lender; (ii) a Note executed by the Borrower in favor of the Lender if requested by the Lender; (b) There shall not have occurred since December 31, 2013 any event or condition that has had or would reasonably expected to have, either individually or in the aggregate, a material adverse effect on the business, assets, financial condition, or operations of the Borrower and its Subsidiaries, taken as a whole. (c) Except as disclosed in the Registration Statement, there is no litigation, arbitration or governmental investigation, proceeding or inquiry as to which there is a reasonable possibility of an adverse determination which (i) would reasonably be expected to have a Material Adverse Effect or (ii) which seeks to prevent, enjoin or delay the funding of the initial Borrowings. (d) The Borrower shall have terminated, or cause to be terminated, all lender and letter of credit issuer commitments under the Credit Agreement dated as of August 14, 2013 among QEP Midstream Partners Operating, LLC, as borrower, the Borrower, as parent guarantor, Xxxxx Fargo Bank, N.A., as administrative agent, and the lenders and other parties thereto, as amended, and shall have repaid (or substantially concurrently with the satisfaction of the other conditions precedent to the initial Borrowing shall repay on the Closing Date) all loans and other amounts owed under such Credit Agreement. The Lender shall notify the Borrower of the Closing Date, and such notice shall be conclusive and binding.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (QEP Midstream Partners, LP), Credit Agreement (Tesoro Logistics Lp)
Conditions of the Closing Date. The obligation of the each Lender to fund the make its initial Borrowing Credit Extension hereunder is subject to the occurrence of the Execution Date and satisfaction (or waiver in accordance with Section 9.0111.01) of the following conditions precedent:
(a) The LenderAdministrative 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 to the extent required to be executed, 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 LenderAdministrative Agent and the Required Lenders:
(i) executed counterparts of this Agreement, in the number requested by the Lender;
(ii) a Note executed by the Borrower in favor of the each Lender if requested by the Lenderrequesting a Note;
(ii) executed counterparts of the Subsidiary Guaranty Agreement;
(iii) executed counterparts of the Security Agreement and such other security agreements, if any, as may be required to be delivered pursuant to Section 6.11, together with
(A) original stock certificates or other certificates evidencing the Equity Interests pledged pursuant thereto, an undated stock power for each such certificate duly executed in blank by the registered owner thereof and, in the case of a pledge of Equity Interests issued by a Person who is not a party to the Security Agreement, an acknowledgment of pledge executed by such Person;
(B) copies of the Organization Documents of each issuer of Equity Interests being pledged to the extent not previously delivered pursuant to Section 4.01;
(C) each original promissory note, if any, pledged pursuant to the Security Agreements together with an undated endorsement for each such promissory note duly executed in blank by the holder thereof;
(D) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions in which the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreements, covering the Collateral, provided however that no mortgages or fixture filings shall be required to be filed in county recording offices;
(E) such UCC-3 termination statements as may be required in order to release Liens on the Collateral, if any, other than Liens permitted by this Agreement;
(F) such lien searches as the Administrative Agent shall reasonably request; and
(G) evidence of the completion of such other actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created thereby;
(iv) a favorable opinion of (i) Xxxxxx & Xxxxxxx, LLP, counsel to the Loan Parties, covering such matters concerning the Loan Parties, the Loan Documents and the Collateral as the Arrangers may reasonably request, (ii) Colorado counsel to the Loan Parties, covering such matters concerning any Loan Party organized in Colorado as the Arrangers may reasonably request and (iii) Utah and Wyoming counsel to the Loan Parties, covering the transmitting utility financing statements to be filed in each such state, in the case of each opinion, in form and substance reasonably satisfactory to the Arrangers;
(v) financial projections of the Borrower and the Acquired Businesses through December 31, 2015, prepared on a basis consistent with the financial projections of the Borrower and the Acquired Businesses delivered to the Arrangers prior to the Closing Date; and
(vi) certificates of insurance evidencing the insurance required to be maintained pursuant to this Agreement, naming the Administrative Agent, on behalf of the Secured Parties as an additional insured or loss payee, as the case may be, delivered together with a certificate of a Responsible Officer of the General Partner on behalf of the Parent Guarantor and the Borrower (which may be combined with the certificate delivered pursuant to Section 4.02(b)(iii)) certifying that all insurance required to be maintained pursuant to this Agreement has been obtained and is in effect.
(b) 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 to the extent required to be executed, each dated the Closing Date (or, in the case of certificates of government officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:
(i) a certificate of a secretary or assistant secretary of the General Partner on behalf of each Loan Party certifying as to the incumbency and genuineness of the signature of each officer of the General Partner executing the Loan Documents and certifying that attached thereto is a true, correct and complete copy of each of the following, or certifying that such documents were delivered on the Execution Date and certifying that since such date there have been no changes thereto: (A) the articles or certificate of limited partnership or formation of such Loan Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation, (B) the limited partnership agreement, limited liability company agreement or other governing document of such Loan Party as in effect on the Closing Date, (C) resolutions duly adopted by the board of directors (or other governing body) of the General Partner authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is a party; and
(ii) certificates evidencing valid existence and good standing of each Loan Party, issued by the applicable governmental authority of the state where each is organized;
(iii) a certificate, dated the Closing Date and signed by a Responsible Officer of the General Partner on behalf of the Parent Guarantor and the Borrower certifying
(A) that each of the Borrower and the Parent Guarantor (on a Consolidated basis together with its Consolidated Subsidiaries) is Solvent on such date after giving effect to the Transactions;
(B) that, both before and immediately after giving effect to the Transactions, no Default exists on such date;
(C) that, both before and immediately after giving effect to the Transactions and the incurrence of Indebtedness on such date, if any, the representations and warranties contained in Article V are true and correct on and as of such date;
(D) that a true and correct copy of each Material Agreement either (i) has been filed with the SEC by the Parent Guarantor as exhibits to its Registration Statement as in effect on the date of the IPO (with certain terms thereof having been redacted as permitted by applicable SEC regulations) or (ii) is attached to such certificate; and
(E) as to the matters set forth in paragraphs (e) through (i) of this Section 4.02, in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Parent Guarantor shall have delivered the Initial Financial Statements to the Administrative Agent, which delivery may be accomplished by the filing of the Registration Statement containing such financial statements.
(d) The Joint Bookrunners shall be reasonably satisfied with the material terms of the agreements (other than the Underwriting Agreement) filed by the Parent Guarantor with the SEC as exhibits to its Registration Statement as in effect on the date of the IPO (it being understood and agreed that the material terms of any such documents described in detail in the Registration Statement as so described or otherwise provided to the Lenders and the Arrangers prior to the Execution Date shall be deemed to be reasonably satisfactory).
(e) The Contribution and the IPO shall have been, or contemporaneously with the satisfaction (or waiver in accordance with Section 11.01) of the other conditions precedent set forth in this Section 4.02 are being, consummated in all material respects as described in the Registration Statement in compliance in all material respects with applicable law and regulatory approvals.
(f) All partnership and company, governmental and applicable material third-party consents and approvals necessary in connection with the Transactions shall have been obtained.
(g) There shall not have occurred since December 31, 2013 2012 any event or condition that has had or would reasonably expected to have, either individually or in the aggregate, a material adverse effect on the business, assetsassets (including the assets or business to be contributed to the Borrower and its Subsidiaries pursuant to the Contribution and IPO), financial condition, or operations of the Borrower and its Subsidiaries, taken as a whole.
(ch) Except as disclosed in the Registration Statement, there is no litigation, arbitration or governmental investigation, proceeding or inquiry as to which there is a reasonable possibility of an adverse determination which (i) would reasonably be expected to have a Material Adverse Effect or (ii) which seeks to prevent, enjoin or delay the funding Contribution or IPO or the making of the initial BorrowingsCredit Extensions.
(di) The Borrower shall have terminated, or cause to be terminated, all lender and letter of credit issuer commitments under the Credit Agreement dated as of August 1425, 2013 2011 among QEP Midstream Partners Operating, LLC, as borrower, the Borrower, as parent guarantorQRI, Xxxxx Fargo Bank, N.A., as administrative agent, and the lenders and other letter of credit issuers parties thereto and the Term Loan Agreement dated as of April 18, 2012 among QRI, Xxxxx Fargo Bank, as administrative agent, and the lenders parties thereto, as shall have been amended, and shall have repaid (or substantially concurrently with the satisfaction of the other conditions precedent to the initial Borrowing shall repay are being amended effective on the Closing Date, to the extent necessary to permit the Contribution and IPO.
(j) all loans To the extent not previously delivered, the Lenders shall have received such documentation and other amounts owed under information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act including information required by the Act and information described in Section 11.19.
(k) The Administrative Agent and the Arrangers shall have received all fees and expenses that are due and payable by the Borrower on or before the Closing Date, including fees payable to the Lenders, and including, to the extent invoiced, reimbursement or payment of all expenses (including, without limitation, Attorney Costs of one firm as counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, 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 Credit AgreementLender prior to the proposed Closing Date specifying its objection thereto. The Lender Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.01) at or prior to 5 p.m., New York City time, on the ninetieth (90th) day after the Execution Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 2 contracts
Samples: Credit Agreement (Qep Resources, Inc.), Credit Agreement (QEP Midstream Partners, LP)