Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing): (a) The Administrative Agent shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender. (ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date. (iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with: (A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank, (B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral), (C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens), (D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and (E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken. (v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties. (vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement). (vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken. (viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party. (ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization. (x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate. (xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default. (xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request. (xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower. (xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent. (xvi) [Intentionally omitted]. (xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date. (xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request. (b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes. (c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015. (d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries. (f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters. (i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Resource Partners Lp), Credit Agreement (Alliance Holdings GP, L.P.)
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of this Agreement shall be amended is subject to the conditions precedent that the Administrator and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative each Purchaser Agent shall have received on or before the day of the initial Borrowing the followingRestatement Date, each dated such day (unless otherwise specified), in form and substance (including the date thereof) reasonable satisfactory to the Administrative Administrator and each Purchaser Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lenderfollowing:
(ia) Executed counterparts A counterpart of this Agreement, Agreement and the other Transaction Documents duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lenderparties thereto.
(b) Copies of: (i) the resolutions of the board of directors or board of managers of each of the Parent, the Seller, the Originators and the Servicer authorizing the execution, delivery and performance by the Parent, the Seller, such Originator and the Servicer, as the case may be, of this Agreement and the other Transaction Documents to which it is a party; (ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended all documents evidencing other necessary corporate action and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instrumentsgovernmental approvals, if any, representing with respect to this Agreement and the securities Collateral referred to therein accompanied other Transaction Documents; and (iii) the organizational documents of the Parent, the Seller, each Originator and the Servicer, in each case, certified by undated stock powers the Secretary or instruments Assistant Secretary of transfer executed the applicable party and, in blank,the case of good standing certificates, certificates of qualification, certificate of formation or similar documents, the applicable secretary of state.
(Bc) UCC A certificate of the Secretary or Assistant Secretary of the Parent, the Seller, the Originators and the Servicer certifying the names and true signatures of its officers who are authorized to sign this Agreement and the other Transaction Documents to which it is a party. Until the Administrator and each Purchaser Agent receives a subsequent incumbency certificate from the Parent, the Seller, an Originator or the Servicer, as the case may be, the Administrator and each Purchaser Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator or the Servicer, as the case may be.
(d) [intentionally omitted]
(e) Acknowledgment copies, or time stamped receipt copies, of proper financing statements in form appropriate for filing statements, duly filed on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect the Liens created under interests of the Security Seller and the Administrator (for the benefit of the Purchasers) contemplated by this Agreement and the Sale Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),.
(Cf) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searchesAcknowledgment copies, or equivalent reports or searchestime stamped receipt copies, each of a recent date listing all effective proper 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 if any, duly 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 Administrator on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect terminate or release all security interests and other rights of any Person in the Liens created under Receivables, Contracts or Related Security previously granted by the Security Agreement Originators or the Seller in any applicable secretary of state UCC filing office.
(except g) Completed UCC search reports from all applicable state jurisdictions, dated on or shortly before the Restatement Date, listing all financing statements filed with the secretary of state in all such state jurisdictions, that name Swift, the Originators or the Seller as debtor, and similar search reports from all applicable jurisdictions with respect to fixture filings related to judgment, tax, ERISA and other liens as the Mortgaged Properties and “as-extracted” collateral filings) has Administrator may request, showing no Adverse Claims on any Pool Assets (other than those which have been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated released as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined described in the Note Purchase Agreementpreceding clause (f)).
(viih) Executed counterparts Favorable opinions, addressed to each Rating Agency, the Administrator, each Purchaser, each Purchaser Agent and each Liquidity Provider, in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent, of Xxxxx & Xxxxxx L.L.P., counsel for the Patent Security Agreement Parent, the Seller, the Originators and the Trademark Security Agreement (as each such term is defined in Servicer, and/or in-house counsel for the Security Agreement)Parent, duly executed by the applicable Loan Parties Seller, the Originators and the Collateral AgentServicer, together with evidence that all action that covering such matters as the Administrative Agent Administrator or the Collateral any Purchaser Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partnerreasonably request, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partnerorganizational and enforceability matters, managing membercertain bankruptcy matters, board of directors or other similar actionand certain UCC perfection and priority matters (based on the search results referred to in clause (g) above and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of Stateofficer’s certificate referred to in Section 3.01(a)(ixclause (d) above).
(i) Satisfactory results of a review, field examination and audit (B) a true and correct copy performed by representatives of the bylaws or limited liability company agreement (or similar Constitutive DocumentsAdministrator) as of the Servicer’s collection, operating and reporting systems, the Credit and Collection Policy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Servicer’s operating location(s) and satisfactory review and approval of the Eligible Receivables in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and existence on the date of the initial BorrowingPurchase under this Agreement.
(j) A pro forma Information Package representing the performance of the Receivables Pool for the Fiscal Month before closing and a pro forma Weekly Report representing the performance of the Receivables Pool for the week before the closing.
(k) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, including any such costs, fees and expenses arising under or referenced in Section 6.4 of this Agreement and the Fee Letter.
(Cl) Good standing certificates with respect to each of the due Parent, the Seller, the Originators and the Servicer issued by the Secretary of State (or similar official) of the state of each such Person’s organization or formation and good standing or valid existence principal place of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Defaultbusiness.
(xiim) A certificate of To the Secretary or an Assistant Secretary of extent required by each Loan Party or on its behalf by its managing general partner or managing memberConduit Purchaser’s commercial paper program, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of letters from each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf rating agencies then rating such Conduit Purchaser’s Notes confirming the rating of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and such Notes after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrowertransaction contemplated by this Agreement.
(xvn) A five year Business Plan in form and scope satisfactory computer file containing all information with respect to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein Receivables as the Administrative Administrator or any Purchaser Agent may reasonably request.
(bo) The Lenders shall be satisfied with Such documents necessary to terminate or release all security interests and other rights of any Person in the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions membership interests of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposesSeller.
(cp) Before giving effect to Such other approvals, opinions or documents as the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party Administrator or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be Purchaser Agent may reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretorequest.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.), Receivables Purchase Agreement (SWIFT TRANSPORTATION Co)
Conditions Precedent to Amendment and Restatement. The effectiveness of this Agreement and of the amendment and restatement of the Existing Credit Loan Agreement shall be amended effected hereby and restated in full as set forth herein on the date obligations of the Bank under and pursuant to this Agreement are subject to the following conditions have been satisfied (or waived in writing):precedent.
(a) The Administrative Agent Bank shall have received from Borrower (i) a copy, certified by a duly authorized officer of Borrower to be true and complete on and as of the Closing Date, of Borrower's Articles of Incorporation and by-laws or code of regulations as in effect on the Closing Date (together with any an all amendments thereto); (ii) the charter or other organizational documents of Borrower, certified by the Ohio Secretary of State; and (iii) a Certificate of Good Standing for Borrower, each issued by the Ohio Secretary of State not more than thirty (30) days before the day Closing Date.
(b) The Bank shall have received from Borrower copies, certified by a duly authorized officer of Borrower to be true and complete on and as of the initial Borrowing Closing Date, of records of all corporate action taken by Borrower to authorize (i) the followingexecution and delivery of this Agreement and the other Loan Documents to which it is a party; and (ii) its performance of all of its obligations under each of such documents.
(c) The Bank shall have received from Borrower an incumbency certificate, dated as of the Closing Date, signed by a duly authorized officer of Borrower and giving the name and bearing a specimen signature of each individual who shall be authorized (i) to sign, in the name and on behalf of Borrower, each dated such day of the Loan Documents to which Borrower is or is to become a party on the Closing Date; and (unless otherwise specified), in form ii) to give notices and substance satisfactory to take other action on behalf of Borrower under the Loan Documents.
(d) Borrower shall have executed and delivered to the Administrative Agent Bank the Note, the Modification Agreement, the Swap Documents and such additional documents, instruments and agreements as the Bank may reasonably require to evidence or to secure any of Borrower's obligations or undertakings under this Agreement or as may be necessary or reasonable or reasonably appropriate to enable the Title Company to issue or to update the Title Policies.
(unless otherwise specifiede) and (except for the Notes) in sufficient copies for each LenderBorrower shall have:
(i) Executed counterparts Filed the Modification Agreement for record in the real property records of this Agreement, duly executed by the Borrower, counties in which the Administrative Agent, the Required Lenders and each Extending Lender.respective Mortgaged Properties are located;
(ii) The Notes payable Filed amendatory financing statements on Form UCC-3 with respect to each Uniform Commercial Code Financing Statement filed with respect to the order of the Lenders that have requested Notes prior to the Effective Date.Existing Loan Agreement; and
(iii) An amended Furnished the Bank with endorsements to each Title Policy previously delivered to the Bank in accordance with the requirements of the Existing Loan Agreement; such endorsements shall confirm, on terms reasonably acceptable to the Bank, that each Mortgage is in full force and restated guaranty effect, constitutes the first and paramount lien on the Mortgaged Property encumbered thereby and secures the Obligations, subject only to matters affecting title to such Mortgaged Property which have been approved by the Bank, and otherwise confirming on terms and in substantially amounts reasonably acceptable to the form Bank that each such Title Policy is in full force and effect. In addition, Borrower shall have paid all costs and expenses payable in connection with all of Exhibit D hereto (together the foregoing, including but not limited to all expenses and premiums with each other guaranty and guaranty supplement delivered from time respect to time pursuant the Title Policies or otherwise payable to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary GuarantorTitle Company.
(ivf) A pledge No change in applicable law shall have occurred which would make it unlawful (i) for the Bank to perform any of its agreements or obligations under any of the Loan Documents to which it is a party on the Closing Date; or (ii) for Borrower to perform any of its agreements or obligations under any of the Loan Documents.
(g) Borrower shall have duly and security agreementproperly performed, complied with and observed, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searchesmaterial respects, each of a recent date listing all effective financing statementsits covenants, lien notices or comparable documents (together with copies of such financing statements agreements and documents) that name any obligations contained in the Existing Loan Party as debtor Agreement 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan PartiesDocuments to which Borrower is a party or by which Borrower is bound on the Closing Date. No event shall have occurred on or prior to the Closing Date, and
(E) evidence that all other actionsand no condition shall exist on the Closing Date, recordings and filings that the Administrative Agent which constitutes or the Collateral Agent may deem necessary would constitute a Default or desirable in order to perfect the Liens created an Event of Default under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been takenExisting Loan Document or any such Loan Document.
(vh) Executed counterparts of Borrower shall have (x) paid the Amended Intercreditor Agreement, duly executed Extension Fee and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent Modification Fee to the provisions thereof Bank; (y) paid the Annual MCR Fee and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to itthat the same shall then be due and payable) the current installment of the Letter of Credit Commission; and each Transaction Document to which it is (z) paid or is to be a party and/or authorizing reimbursed the general partnerBank for all reasonable out-of-pocket costs and expenses incurred by the Bank in connection with this Agreement or the transactions contemplated hereby, managing member or officersincluding without limitation all attorney's, as applicableappraisal, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental environmental and other third party approvals fees.
(i) The Bank shall have received such other approvals, opinions, certificates, instruments and consents, if any, documents with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated described herein as the Administrative Agent it may reasonably request.
(bj) The Lenders Each of the representations and warranties made by or on behalf of Borrower in this Agreement or in any other Loan Document shall be satisfied with the capitalization of each Loan Party true, correct and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, complete in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Facility Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative Paying Agent shall have received on or before the day of the initial Borrowing Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Paying Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLender Party:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iiiii) An amended and restated A guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiiiii) Certified copies of the resolutions (or excerpts excepts thereof) of or on behalf of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, partnership or limited liability company or corporationcompany, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ixiv) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial BorrowingInitial Extension of Credit, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I1) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II2) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(xv) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial BorrowingInitial Extension of Credit, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xivi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the initial BorrowingInitial Extension of Credit), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix3.01(a)(iv), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii3.01(a)(iii) were adopted and on the date of the initial BorrowingInitial Extension of Credit, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the initial BorrowingInitial Extension of Credit, that constitutes a Default.
(xiivii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiiiviii) Certified copies of (A) the Intercreditor Agreement, duly executed by or on behalf of the parties thereto and (B) each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the LendersLender Parties, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, Agreement as the Administrative Paying Agent shall request.
(xivix) A certificate, substantially in the form of Exhibit G E hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xvx) A five year Business Plan in form and scope satisfactory to the Administrative AgentAgents.
(xvixi) [Intentionally omitted]A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xviixii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLCXxxxxx Rosenman LLP, counsel for the Loan Parties, addressed to in substantially the Administrative Agentform of Exhibit F-1 hereto.
(xiii) A favorable opinion of Xxxxxx X. Xxxxxxx, the Collateral Agent Senior Vice President-Law and the Lenders Administration, General Counsel and dated as Secretary of the Effective DateGeneral Partner, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective DateExhibit F-2 hereto.
(xviiixiv) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLCShearman & Sterling LLP, New York counsel for the Loan PartiesAgents, addressed in form and substance satisfactory to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably requestAgents.
(b) The Lenders Lender Parties shall be satisfied with the capitalization of each Loan Party and the partnership, partnership or limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 20152004.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Paying Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the LendersLender Parties) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the LendersLender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral AgentAgents, the Joint Lead Arrangers and the Lenders Lender Parties and all reasonable expenses of the Administrative Agent and the Collateral Agent Agents (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative AgentAgents) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee LettersLetter.
(g) The Senior Notes shall have received, within the twelve-month period immediately preceding the Initial Extension of Credit, long-term senior unsecured non-credit enhanced debt ratings of at least BBB from Fitch, Inc., and since the date of such rating Fitch, Inc. shall not have downgraded such rating below BBB-.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date (the “Amendment Closing Date”) that the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day Agent’s receipt of the initial Borrowing the following, each dated such day of which shall be originals or facsimiles or pdf electronic copies (followed promptly by originals) unless otherwise specified), each dated the Amendment Closing Date unless otherwise indicated, properly executed by a Responsible Officer of the signing Loan Party and in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderAgent:
(i) Executed executed counterparts of this Agreement;
(ii) executed counterparts of each Guaranty;
(iii) a Note, or, with respect to any Note issued prior to the Amendment Closing Date, a replacement Note, executed by the relevant Borrower in favor of each Lender requesting a Note, if any;
(iv) the Security Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the relevant Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.;
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation Borrowers signed by a Responsible Officer of each Loan Party Borrower certifying that, before and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as after giving effect to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s officethis Agreement, (Bi) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in Article 5 and the other Loan Documents as though made are true and correct in all material respects on and as of the date Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (ii) no Default or Event of Default exists immediately before or immediately after giving effect thereto, (iii) UHS and its Restricted Subsidiaries shall be in Pro Forma Compliance with the financial covenant set forth in Section 7.11 as of (A) the Amendment Closing Date and (B) the last day of the initial Borrowing and (E) most recently ended determination period after giving Pro Forma Effect to the absence Amendment Closing Date, the making of any event occurring Credit Extensions on the Amendment Closing Date and continuing, any Investment or resulting from the initial Borrowing, that constitutes a Default.Disposition to be consummated in connection therewith;
(xiivi) A certificate of a Request for Credit Extension relating to the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is Credit Extensions to be a party and made on the other documents to be delivered hereunder and thereunder.Amendment Closing Date in accordance with the requirements hereof;
(xiiivii) Certified copies an opinion of Xxxx Xxxxxxx & Xxxxxx LLP, special counsel to the Loan Parties in the form of Exhibit H, addressed to each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto Agent and each Lender and in form and substance reasonably satisfactory to the Lenders, together with all agreements, instruments Administrative Agent;
(viii) such documents and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, certifications as the Administrative Agent shall request.may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(xivix) A certificatesuch certificates of resolutions or other action, substantially 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 of such Loan Party 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; and
(x) a certificate in the form of Exhibit G hereto L hereto, attesting to the solvency of UHS, before and after the Amendment Closing Date, from the chief financial officer of UHS on behalf of UHS (the “Solvency Certificate”).
(b) Since December 31, attesting 2009, there shall not have occurred any event, circumstance or occurrence that, either separately or together with all other such events, circumstances or occurrences, that has had or could reasonably be expected to have, a Material Adverse Effect.
(c) The representations and warranties contained in Article 5 shall be true and correct in all material respects on and as of the Amendment Closing Date, except to the Solvency extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of the Loan Parties such earlier date.
(d) No Default shall exist before and or after giving effect to the TransactionAmendment Closing Date, or would result from any Credit Extension to be made on the Amendment Closing Date, or from the chief financial officer (or person performing similar functions) application of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretoproceeds therefrom.
(e) All Governmental Authorizations fees and third party consents expenses required to be paid hereunder or under the Existing Credit Agreement on or before the Amendment Closing Date and approvals necessary in connection invoiced (with reasonable supporting documentation) and delivered to the Transaction Borrowers before the Amendment Closing Date shall have been obtained or shall be paid in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (full in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiariescash.
(f) The Borrower Administrative Agent shall have paid received all accrued fees of the Administrative Agentdocumentation and other information with respect to each Loan Party required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee LettersPatriot Act.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated to read in full as set forth herein on the date (the "Restatement Date") on which the Agent shall notify the Company that the Agent shall have received the following conditions have been satisfied (or waived in writing):form and substance satisfactory to it: Credit Agreement ----------------
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing the followingNotes, duly executed by each Borrower.
(b) The following documents, each dated such day the Restatement Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for the Agent, each LenderLender and each Issuing Bank:
(i) Executed counterparts a copy of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable amendment to the order charter or articles of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form incorporation or articles of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect each Obligor made subsequent to the Transaction and each Transaction Document to which it is or is to be a party.
First Restatement Date, certified (ix) A copy as of a certificate of date reasonably near the Restatement Date) by the Secretary of State of the jurisdiction state of its incorporation or organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to being a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.thereof; and
(xii) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing memberObligor, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or signed on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions)Secretary, dated the date of the initial Borrowing Restatement Date (the statements made in which certificate shall be true on and as of the date of the initial BorrowingRestatement Date), certifying as to (A) the absence absence, except to the extent provided in said certificate, of any amendments to the charter or similar Constitutive Documents articles of incorporation or organization of such Person Obligor since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix)First Restatement Date, (B) a true and correct copy the absence, except to the extent provided in said certificate, of any amendments to the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on of such Obligor subsequent to the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted First Restatement Date, and on the date of the initial Borrowing, (C) the due incorporation or organization or formation and good standing or valid existence of such Person Obligor as a corporation, a limited liability company corporation or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction its state of its organization incorporation or formationorganization, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a DefaultObligor.
(xiic) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized An amendment to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Holdings Pledge Agreement, the Terra Capital Pledge Agreement, the Subsidiary Pledge and Security Agreement and the Cavalier Credit TNLP Pledge and Security Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved Exhibit B, duly executed by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as each of the Effective Dateintended parties thereto, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.together with:
(i) The Borrower’s such appropriately completed and its Subsidiaries’ employee benefit plans duly executed copies of Uniform Commercial Code financing statements and financing statement amendments as the Agent shall behave requested in order to continue the perfection and protection of the Liens created by the Security Documents and covering the Collateral described therein, in all material respects, funded in accordance with the minimum statutory requirements, and Credit Agreement ----------------
(ii) no “reportable event” (as defined executed and delivered documents for recordation and filing of or with respect to such Security Documents that the Agent may deem necessary or desirable in ERISA, but excluding events for which reporting has been waived) shall have occurred order to continue the perfection and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedprotection of the Liens created thereby.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),, Alliance Resource Fourth Amended and Restated Credit Agreement
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.. Alliance Resource Fourth Amended and Restated Credit Agreement
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.. Alliance Resource Fourth Amended and Restated Credit Agreement
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the Alliance Resource Fourth Amended and Restated Credit Agreement status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of the Original Agreement shall be amended and restated in full as set forth herein conditioned on the date satisfaction or waiver of the following conditions have been satisfied (or waived in writing):conditions:
(a) The Administrative Agent shall have Buyer has received on or before the day of the initial Borrowing the followingfollowing documents, each dated such day (the Restatement Date or as of the Restatement Date unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
: (i) Executed counterparts of this Agreementeach Repurchase Document that has been amended, duly executed by restated, supplemented or otherwise modified simultaneous with the Borrower, the Administrative Agent, the Required Lenders amendment and each Extending Lender.
(ii) The Notes payable to the order restatement of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Original Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agentparties thereto, the Administrative Agent(ii) an official good standing certificate dated a recent date with respect to each Seller, the holders each Master Series Trust and Guarantor, (iii) certificates of the Senior Notes that have agreed to consent to the provisions thereof secretary or an assistant secretary of each Seller, each Servicer, each Master Series Trust and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, Guarantor together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the Governing Documents and applicable resolutions (or excerpts thereof) and the incumbencies and signatures of officers of Sellers, each Loan Party approving Master Series Trust, Servicers and Guarantor executing the Transaction (to the extent applicable to it) and each Transaction Document Repurchase Documents to which it is or is to be a party and/or authorizing party, evidencing the general partnerrespective authority of Sellers, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, each Master Series Trust Servicers and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, Guarantor with respect to the Transaction execution, delivery and performance thereof, (iv) a Closing Certificate, (v) an executed Seller’s Power of Attorney in the form of Exhibit I for each Seller and each Transaction Document Master Series Trust, (vi) [reserved], (vii) such opinions from counsel to which it is or is Sellers, each Servicer and Guarantor as Buyer may require, including with respect to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s officecorporate matters, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowingenforceability, (C) the due organization non-contravention, no consents or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Personapprovals required other than those that have been obtained, (D) the truth of the representations and warranties contained perfected security interests in the Loan Documents as though made on Purchased Assets, the Accounts and as of any other collateral pledged pursuant to the date of the initial Borrowing and Repurchase Documents, (E) Investment Company Act matters (including Xxxxxxx Rule compliance), (F) the absence applicability of any event occurring Bankruptcy Code and continuing“securities contract” and “master netting agreement” safe harbors to this Agreement (including the pledge of the Related Credit Enhancement) and the Guarantee Agreement, or resulting from the initial Borrowingand (G) Delaware series trust matters, that constitutes a Default.and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as it may reasonably require;
(xiib) A certificate UCC financing statements have been filed against each Seller and each Master Series Trust in all filing offices required by Buyer, (ii) Buyer has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to each Relevant Party and the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing memberPurchased Assets as Buyer may reasonably require, as applicable, certifying and (iii) the names and true signatures of the officers or managers, as applicable, results of such Person authorized searches are reasonably satisfactory to sign on its behalf Buyer;
(c) Buyer has received the original Series Trust Certificate for each Transaction Document Underlying Series Trust, each issued to which it is or is to be a party re-registered in the name of Buyer; and
(d) Buyer has received payment from Sellers of all fees and expenses then payable under the Fee Letter and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of Repurchase Documents, as contemplated by Section 13.02, including without limitation the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit AgreementFacility Fee, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency extent due and payable on or before the Restatement Date. Each Confirmation delivered by the related Seller shall constitute a certification by such Seller that all of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer conditions precedent in this Article 6 (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee LettersSections 6.02(e) or 6.01(d), 6.01(e) or 6.02(g) (solely with respect to Custodian) have been satisfied.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Master Repurchase Agreement and Securities Contract (Altisource Residential Corp)
Conditions Precedent to Amendment and Restatement. The This amendment and restatement of the Existing Credit Agreement shall be amended become effective on and restated in full as set forth herein of the first date (the “Effective Date”) on the date which the following conditions precedent have been satisfied (or waived in writing):satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2014.
(b) The Administrative Borrower shall have notified the Agent, on behalf of the Lenders, in writing as to the proposed Effective Date.
(c) The Borrower shall have paid all accrued fees and expenses then due and payable of the Agent and the Lenders (including the accrued fees and expenses then due and payable of counsel to the Agent).
(d) On the Effective Date, the following statements shall be true and the 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 on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) The Agent shall have received on or before the day of the initial Borrowing Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Dateextent requested by any Lender pursuant to Section 2.15.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiiii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party the Board of Directors of the Borrower approving this Agreement and the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may beNotes, and of all documents evidencing other necessary corporate action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consentsapprovals, if any, with respect to this Agreement and the Transaction and each Transaction Document to which it is or is to be a partyNotes.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xiiiii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, the Borrower certifying the names and true signatures of the officers or managers, as applicable, of such Person the Borrower authorized to sign on its behalf each Transaction Document to which it is or is to be a party this Agreement and the Notes and the other documents to be delivered hereunder and thereunderhereunder.
(xiiiiv) Certified copies A favorable opinion of each Proskauer Rose LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Agent.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Related Documents not otherwise delivered pursuant to this Section 3.01(a)Agent, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Credit Agreement (Celgene Corp /De/)
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of this Agreement shall be amended is subject to the conditions precedent that the Administrator and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative each Purchaser Agent shall have received on or before the day of the initial Borrowing the followingRestatement Date, each dated such day (unless otherwise specified), in form and substance (including the date thereof) reasonable satisfactory to the Administrative Administrator and each Purchaser Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lenderfollowing:
(ia) Executed counterparts A counterpart of this Agreement, Agreement and the other Transaction Documents duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lenderparties thereto.
(b) Copies of: (i) the resolutions of the board of directors or board of managers of each of the Parent, the Seller, the Originators and the Servicer authorizing the execution, delivery and performance by the Parent, the Seller, such Originator and the Servicer, as the case may be, of this Agreement and the other Transaction Documents to which it is a party; (ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended all documents evidencing other necessary corporate action and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instrumentsgovernmental approvals, if any, representing with respect to this Agreement and the securities Collateral referred to therein accompanied other Transaction Documents; and (iii) the organizational documents of the Parent, the Seller, each Originator and the Servicer, in each case, certified by undated stock powers the Secretary or instruments Assistant Secretary of transfer executed the applicable party and, in blank,the case of good standing certificates, certificates of qualification, certificate of formation or similar documents, the applicable secretary of state.
(Bc) UCC A certificate of the Secretary or Assistant Secretary of the Parent, the Seller, the Originators and the Servicer certifying the names and true signatures of its officers who are authorized to sign this Agreement and the other Transaction Documents to which it is a party. Until the Administrator and each Purchaser Agent receives a subsequent incumbency certificate from the Parent, the Seller, an Originator or the Servicer, as the case may be, the Administrator and each Purchaser Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator or the Servicer, as the case may be.
(d) [intentionally omitted]
(e) Acknowledgment copies, or time stamped receipt copies, of proper financing statements in form appropriate for filing statements, duly filed on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect the Liens created under interests of the Security Seller and the Administrator (for the benefit of the Purchasers) contemplated by this Agreement and the Sale Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),.
(Cf) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searchesAcknowledgment copies, or equivalent reports or searchestime stamped receipt copies, each of a recent date listing all effective proper 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 if any, duly 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 Administrator on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect terminate or release all security interests and other rights of any Person in the Liens created under Receivables, Contracts or Related Security previously granted by the Security Agreement Originators or the Seller in any applicable secretary of state UCC filing office.
(except g) Completed UCC search reports from all applicable state jurisdictions, dated on or shortly before the Restatement Date, listing all financing statements filed with the secretary of state in all such state jurisdictions, that name Xxxxx, the Originators or the Seller as debtor, and similar search reports from all applicable jurisdictions with respect to fixture filings related to judgment, tax, ERISA and other liens as the Mortgaged Properties and “as-extracted” collateral filings) has Administrator may request, showing no Adverse Claims on any Pool Assets (other than those which have been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated released as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined described in the Note Purchase Agreementpreceding clause (f)).
(viih) Executed counterparts Favorable opinions, addressed to each Rating Agency, the Administrator, each Purchaser, each Purchaser Agent and each Liquidity Provider, in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent, of Xxxxx & Xxxxxx L.L.P., counsel for the Patent Security Agreement Parent, the Seller, the Originators and the Trademark Security Agreement (as each such term is defined in Servicer, and/or in-house counsel for the Security Agreement)Parent, duly executed by the applicable Loan Parties Seller, the Originators and the Collateral AgentServicer, together with evidence that all action that covering such matters as the Administrative Agent Administrator or the Collateral any Purchaser Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partnerreasonably request, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partnerorganizational and enforceability matters, managing membercertain bankruptcy matters, board of directors or other similar actionand certain UCC perfection and priority matters (based on the search results referred to in clause (g) above and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of Stateofficer’s certificate referred to in Section 3.01(a)(ixclause (d) above).
(i) Satisfactory results of a review, field examination and audit (B) a true and correct copy performed by representatives of the bylaws or limited liability company agreement (or similar Constitutive DocumentsAdministrator) as of the Servicer’s collection, operating and reporting systems, the Credit and Collection Policy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Servicer’s operating location(s) and satisfactory review and approval of the Eligible Receivables in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and existence on the date of the initial BorrowingPurchase under this Agreement.
(j) A pro forma Information Package representing the performance of the Receivables Pool for the Fiscal Month before closing and a pro forma Weekly Report representing the performance of the Receivables Pool for the week before the closing.
(k) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, including any such costs, fees and expenses arising under or referenced in Section 6.4 of this Agreement and the Fee Letter.
(Cl) Good standing certificates with respect to each of the due Parent, the Seller, the Originators and the Servicer issued by the Secretary of State (or similar official) of the state of each such Person’s organization or formation and good standing or valid existence principal place of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Defaultbusiness.
(xiim) A certificate of To the Secretary or an Assistant Secretary of extent required by each Loan Party or on its behalf by its managing general partner or managing memberConduit Purchaser’s commercial paper program, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of letters from each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf rating agencies then rating such Conduit Purchaser’s Notes confirming the rating of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and such Notes after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrowertransaction contemplated by this Agreement.
(xvn) A five year Business Plan in form and scope satisfactory computer file containing all information with respect to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein Receivables as the Administrative Administrator or any Purchaser Agent may reasonably request.
(bo) The Lenders shall be satisfied with Such documents necessary to terminate or release all security interests and other rights of any Person in the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions membership interests of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposesSeller.
(cp) Before giving effect to Such other approvals, opinions or documents as the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party Administrator or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be Purchaser Agent may reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretorequest.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of this Agreement shall be amended is subject to the conditions precedent that the Administrator and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative each Purchaser Agent shall have received on or before the day of the initial Borrowing the followingRestatement Date, each dated such day (unless otherwise specified), in form and substance (including the date thereof) reasonable satisfactory to the Administrative Administrator and each Purchaser Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lenderfollowing:
(ia) Executed counterparts A counterpart of this Agreement, Agreement and the other Transaction Documents duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lenderparties thereto.
(b) Copies of: (i) the resolutions of the board of directors or board of managers of each of the Parent, the Seller, the Originators and the Servicer authorizing the execution, delivery and performance by the Parent, the Seller, such Originator and the Servicer, as the case may be, of this Agreement and the other Transaction Documents to which it is a party; (ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended all documents evidencing other necessary corporate action and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instrumentsgovernmental approvals, if any, representing with respect to this Agreement and the securities Collateral referred to therein accompanied other Transaction Documents; and (iii) the organizational documents of the Parent, the Seller, each Originator and the Servicer, in each case, certified by undated stock powers the Secretary or instruments Assistant Secretary of transfer executed the applicable party and, in blank,the case of good standing certificates, certificates of qualification, certificate of formation or similar documents, the applicable secretary of state.
(Bc) UCC A certificate of the Secretary or Assistant Secretary of the Parent, the Seller, the Originators and the Servicer certifying the names and true signatures of its officers who are authorized to sign this Agreement and the other Transaction Documents to which it is a party. Until the Administrator and each Purchaser Agent receives a subsequent incumbency certificate from the Parent, the Seller, an Originator or the Servicer, as the case may be, the Administrator and each Purchaser Agent shall be entitled to rely on the last such certificate delivered to it by the Seller, such Originator or the Servicer, as the case may be.
(d) [intentionally omitted]
(e) Acknowledgment copies, or time stamped receipt copies, of proper financing statements in form appropriate for filing statements, duly filed on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect the Liens created under interests of the Security Seller and the Administrator (for the benefit of the Purchasers) contemplated by this Agreement and the Sale Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),.
(Cf) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searchesAcknowledgment copies, or equivalent reports or searchestime stamped receipt copies, each of a recent date listing all effective proper 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 if any, duly 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 Administrator on or before the Restatement Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent Administrator may deem reasonably necessary or desirable in order to perfect terminate or release all security interests and other rights of any Person in the Liens created under Receivables, Contracts or Related Security previously granted by the Security Agreement Originators or the Seller in any applicable secretary of state UCC filing office.
(except g) Completed UCC search reports from all applicable state jurisdictions, dated on or shortly before the Restatement Date, listing all financing statements filed with the secretary of state in all such state jurisdictions, that name Swift, the Originators or the Seller as debtor, and similar search reports from all applicable jurisdictions with respect to fixture filings related to judgment, tax, ERISA and other liens as the Mortgaged Properties and “as-extracted” collateral filings) has Administrator may request, showing no Adverse Claims on any Pool Assets (other than those which have been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated released as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined described in the Note Purchase Agreementpreceding clause (f)).
(viih) Executed counterparts Favorable opinions, addressed to each Rating Agency, the Administrator, each Purchaser, each Purchaser Agent and each Liquidity Provider, in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent, of Xxxxx & Xxxxxx L.L.P., counsel for the Patent Security Agreement Parent, the Seller, the Originators and the Trademark Security Agreement (as each such term is defined in Servicer, and/or in-house counsel for the Security Agreement)Parent, duly executed by the applicable Loan Parties Seller, the Originators and the Collateral AgentServicer, together with evidence that all action that covering such matters as the Administrative Agent Administrator or the Collateral any Purchaser Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partnerreasonably request, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partnerorganizational and enforceability matters, managing membercertain bankruptcy matters, board of directors or other similar actionand certain UCC perfection and priority matters (based on the search results referred to in clause (g) above and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of Stateofficer’s certificate referred to in Section 3.01(a)(ixclause (d) above).
(i) Satisfactory results of a review, field examination and audit (B) a true and correct copy performed by representatives of the bylaws or limited liability company agreement (or similar Constitutive DocumentsAdministrator) as of the Servicer’s collection, operating and reporting systems, the Credit and Collection Policy of each Originator, historical receivables data and accounts, including satisfactory results of a review of the Servicer’s operating location(s) and satisfactory review and approval of the Eligible Receivables in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and existence on the date of the initial BorrowingPurchase under this Agreement.
(j) A pro forma Information Package representing the performance of the Receivables Pool for the Fiscal Month before closing and a pro forma Weekly Report representing the performance of the Receivables Pool for the week before the closing.
(k) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, including any such costs, fees and expenses arising under or referenced in Section 6.4 of this Agreement and the Fee Letter.
(Cl) Good standing certificates with respect to each of the due Parent, the Seller, the Originators and the Servicer issued by the Secretary of State (or similar official) of the state of each such Person’s organization or formation and good standing or valid existence principal place of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Defaultbusiness.
(xiim) A certificate of To the Secretary or an Assistant Secretary of extent required by each Loan Party or on its behalf by its managing general partner or managing memberConduit Purchaser’s commercial paper program, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of letters from each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf rating agencies then rating such Conduit Purchaser’s Notes confirming the rating of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and such Notes after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrowertransaction contemplated by this Agreement.
(xvn) A five year Business Plan in form and scope satisfactory computer file containing all information with respect to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein Receivables as the Administrative Administrator or any Purchaser Agent may reasonably request.
(bo) The Lenders shall be satisfied with Such documents necessary to terminate or release all security interests and other rights of any Person in the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions membership interests of the Constitutive Documents and each class of Capital Stock in such Loan Party and each Seller. (p) Such other agreement approvals, opinions or instrument relating to such partnership structure, legal structure, and capitalization, and documents as the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party Administrator or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be Purchaser Agent may reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretorequest.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Conditions Precedent to Amendment and Restatement. The Existing This Agreement shall become effective upon, and the Prior Credit Agreement shall be amended and restated in full as set forth herein on the date provided upon, the following conditions have been satisfied (or waived in writing):being satisfied:
(a) The Administrative the Borrower shall deliver or cause to be delivered to the Agent shall have received on or before the day of the initial Borrowing the followingfollowing documents, each dated such day (unless otherwise specified), in form and substance which must be satisfactory to the Administrative Agent (unless otherwise specified) Lenders and (except for the Notes) in sufficient copies for Agent, each Lenderacting reasonably:
(i) Executed counterparts an executed copy of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.;
(ii) The Notes payable to the order an executed copy of the Lenders that have requested Notes prior to the Effective Date.Intercreditor Agreement;
(iii) An amended and restated guaranty in substantially an executed copy of the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.Agency Fee Agreement;
(iv) A pledge a current certificate of status for the Borrower in respect of its jurisdiction of formation and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified copies of UCCits constating documents, United States Patent by-laws and Trademark Office the resolutions authorizing the Loan Documents and United States Copyright Office, tax the transactions thereunder 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 an Officer's Certificate 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 to the Perfection Certificate or that the Administrative Agent or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each incumbency of the officers of the Borrower signing the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.Documents;
(v) Executed counterparts a favourable opinion of the Amended Intercreditor Agreement, duly executed and delivered by Borrower's Counsel addressed to the Collateral Agent, the Administrative AgentLenders and Lenders' counsel and relating to the Borrower and each Material Subsidiary, and the Loan Documents to which they are party, the holders existence of all requisite approvals, non-conflict with laws and such other matters as may be reasonably requested by the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.Agent or its counsel; and
(vi) Executed counterparts a favourable opinion of the Amendment Lenders' counsel addressed to the Note Purchase Agreement, dated Agent and the Lenders and relating to the enforceability of this Agreement and such other matters as may be reasonably requested by the Agent;
(b) all of the date hereof, duly executed and delivered fees payable by the Borrower to the Sole Lead Arranger, the Agent and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officersLenders, as applicable, to act on behalf of such limited partnershipthe Effective Date as provided for herein or as agreed upon between the Agent, limited liability company or corporationthe Lenders and the Borrower in all fee letter agreements between them, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect including pursuant to the Transaction Agency Fee Agreement, shall be paid by the Borrower to the Sole Lead Arranger and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate the Agent, for account of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing memberLenders, as applicable;
(c) the Borrower shall have provided to the Agent true, correct and complete copies of the Second Lien Financing Agreement, Second Lien Security and other material Second Lien Documents (together with an Officer's Certificate certifying the same), each Loan Party is required such Second Lien Document to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments acting reasonably;
(d) the Exchange Notes (as defined in the Second Lien Financing Agreement) shall have been issued by the Borrower under and other documents delivered pursuant to the terms of the Second Lien Financing Agreement in connection with an aggregate principal amount not to exceed U.S. $72,108,000 in exchange for Existing Senior Unsecured Notes (as defined in the Note Purchase Second Lien Financing Agreement) in an aggregate principal amount of not less than U.S. $80,120,000, and the Cavalier Credit AgreementBorrower shall have delivered to the Agent and the Lenders an Officer's Certificate certifying the same to the Agent and the Lenders;
(e) no Default or Event of Default shall have occurred and be continuing and each of the representations and warranties set forth in Section 8.1 shall be true and correct in all respects, in each case, as of the Administrative Agent date of the effectiveness of this Agreement, and the Borrower shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting have delivered to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of an Officer's Certificate certifying the Effective Date, in substantially the form of the opinion pre-approved by counsel same to the Administrative Agent prior and the Lenders;
(f) the Security and other Loan Documents shall have been fully executed and delivered, each in form and substance satisfactory to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Lenders and Lender's counsel, each acting reasonably;
(g) the Agent and the Lenders and dated shall have received a pro forma Compliance Certificate as at June 30, 2018 (with determination of the Consolidated First Lien Debt to Consolidated EBITDA Ratio after giving pro forma effect to the Second Lien Notes issued on the Effective Date) from the Borrower, in substantially and the form of Agent and the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party same, acting reasonably;
(h) the Agent and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there Lenders shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge received pro forma financial forecasts of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than and the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of shall be satisfied with the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLPsame, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.acting reasonably;
(i) The the Agent and the Lenders shall have received an Environmental Certificate from the Borrower’s , in form and substance satisfactory to the Agent and the Lenders, acting reasonably;
(j) the Agent and the Lenders shall have received all such other documentation and information reasonably requested from the Borrower and its Subsidiaries’ employee benefit plans shall be, Material Subsidiaries in all material respects, funded connection with any AML/KYC Legislation as may be required in accordance with Section 17.7 hereof; and
(k) the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) Agent and the Lenders shall have occurred received such other documents, consents, acknowledgements and agreements as may be continuing as to any such employee benefit plan, and (iii) no termination of, reasonably requested by the Agent or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedits counsel.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The ------------------------------------------------- Existing Credit Agreement shall be amended and restated to read in full as set forth herein on the date (the following conditions have been satisfied (or waived in writing):
(a"Restatement Date") The on which the ---------------- Administrative Agent shall notify the Company that the Administrative Agent shall have received on or before the day of following in form and substance satisfactory to it:
(a) This Agreement, duly executed and delivered by each Obligor, the initial Borrowing Required Lenders and the followingAdministrative Agent.
(b) The Notes, duly executed by the Borrower.
(c) The following documents, each dated such day the Restatement Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for the Administrative Agent, each LenderLender and each Issuing Bank:
(i) Executed counterparts for each Obligor, a copy of this Agreementthe charter, duly executed by the Borroweras amended and in effect, the Administrative Agent, the Required Lenders and each Extending Lender.
of such Obligor certified (ii) The Notes payable as of a date reasonably close to the order of the Lenders that have requested Notes prior to the Effective Restatement Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of its organization or formation and a certificate from such Secretary of each Loan Party and (if applicable) each general partner or managing member State dated as of each Loan Party dated a date reasonably near close to the date of the initial Borrowing, certifying (A) Restatement Date as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.and charter documents filed by such Obligor;
(xii) A copy of for each Obligor, a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date an Assistant Secretary of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions)Obligor, dated the date of the initial Borrowing (the statements made in which certificate shall be true on Restatement Date and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) that attached thereto is a true and correct complete copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) by-laws of such Obligor as amended and in effect on at all times from the date on which the resolutions referred to in Section 3.01(a)(viiiclause (B) were adopted to and on including the date of such certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of such Obligor authorizing the execution, delivery and performance of such of the Loan Documents to which such Obligor is or is intended to be a party and the extensions of credit hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the charter of such Obligor has not been amended since the date of the initial Borrowingcertification thereto furnished pursuant to clause (i) above, and (CD) as to the due organization or formation incumbency and good standing or valid existence specimen signature of each officer of such Person as Obligor executing such of the Loan Documents to which such Obligor is intended to be a corporationparty and each other document to be delivered by such Obligor from time to time in connection therewith (and the Administrative Agent and each Lender may conclusively rely on such certificate until it receives notice in writing from such Obligor); and
(iii) for each Obligor, a limited liability company certificate of another officer of such Obligor, dated the Restatement Date, as to the incumbency and specimen signature of the Secretary or a limited partnershipAssistant Secretary, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a DefaultObligor.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Revolving Facility Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iiiii) An amended and restated A guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiiiii) Certified copies of the resolutions (or excerpts thereof) of or on behalf of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ixiv) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(xv) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xivi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix3.01(a)(iv), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii3.01(a)(iii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xiivii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiiiviii) Certified copies of (A) the Intercreditor Agreement, as in effect on the Effective Date, and (B) each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, Agreements as the Administrative Agent shall request.
(xivix) A certificate, substantially in the form of Exhibit G E hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xvx) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvixi) [Intentionally omitted]A Notice of Borrowing or Notice of Issuance, as applicable, relating to the initial Borrowing.
(xviixii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLCXxxxxx Xxxxxxxx LLP, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviiixiii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLCR. Xxxxxxx Xxxxx, New York counsel for the Loan PartiesSenior Vice President, addressed to the Administrative Agent, the Collateral Agent General Counsel and the Lenders and dated as Secretary of the Effective DateGeneral Partner, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xiv) An instrument of accession, covering such customary matters incident in form and substance acceptable to the transactions contemplated herein as the Administrative Agent may reasonably requestand the Borrower, pursuant to which the Administrative Agent, on behalf of the Lenders, shall have agreed to be a party to the Intercreditor Agreement.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit This Agreement shall be effective upon, and the Original Agreement shall be amended and restated in full as set forth herein on the date provided upon, the following conditions have been satisfied (or waived in writing):being satisfied:
(a) The Administrative Agent the Borrower and each of its Material Subsidiaries shall have received on delivered to the Agent a current certificate of status, compliance or before good standing, as the day case may be, in respect of its jurisdiction of incorporation, certified copies of its constating documents, by laws and the resolutions authorizing the Documents to which it is a party and the transactions thereunder and an officers’ certificate as to the incumbency of the initial Borrowing officers thereof signing the followingDocuments to which it is a party;
(b) each Material Subsidiary shall have executed and delivered to the Agent a confirmation respecting the Security previously executed and delivered by it or its predecessors, each dated such day (unless otherwise specified), Document to be in form and substance satisfactory to the Administrative Agent and Lenders’ Counsel;
(unless otherwise specifiedc) the Agent and the Lenders shall have received legal opinions from each of legal counsel to the Borrower and its Subsidiaries and Lenders’ Counsel in form and substance as may be required by the Lenders in their sole discretion;
(except for d) no Default or Event of Default shall have occurred and be continuing; the Notes) in sufficient copies for each Lender:Borrower shall have delivered to the Agent and the Lenders an Officer’s Certificate and other evidence satisfactory to the Agent and the Lenders of the same; and
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable Borrower shall have provided to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) a certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes first amending agreement to the date Second Lien Credit Agreement (which, inter alia, provides for the issuance of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functionsadditional Second Lien Debt), dated the date of the initial Borrowing (the statements made in which certificate amending agreement shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Agent and Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreementacting reasonably, and (ii) the Cavalier Borrower, the Agent and Credit Suisse First Boston, Toronto Branch, in its capacity as administrative agent and collateral agent for the lenders under the Second Lien Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting have executed and delivered a first amending agreement to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan Intercreditor Agreement in form and scope substance satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective DateLenders.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing This Agreement shall be effective upon, and the Second Amended and Restated Credit Agreement shall be amended and restated in full as set forth herein on the date provided upon, the following conditions have been satisfied (or waived in writing):being satisfied:
(a) The Administrative Agent Baytex Trust and each of its Material Subsidiaries shall have received on delivered to the Agent, if applicable, a current certificate of status, compliance or before good standing, as the day case may be, in respect of its jurisdiction of incorporation, certified copies of its constating documents, by laws and the resolutions authorizing the Documents to which it is a party and the transactions thereunder and an officers’ certificate as to the incumbency of the initial Borrowing officers thereof signing the followingDocuments to which it is a party;
(b) each of Baytex Trust’s Material Subsidiaries shall have executed and delivered to the Agent a confirmation respecting the Security previously executed and delivered by it or its predecessors, each dated such day (unless otherwise specified), Document to be in form and substance satisfactory to the Administrative Agent and Lenders’ Counsel in their sole discretion;
(unless otherwise specifiedc) Baytex Trust shall have executed and (except for delivered to the Notes) in sufficient copies for each Lender:
Agent (i) Executed counterparts a confirmation respecting each of this Agreementthe Subordination Agreement (Baytex Trust) and the Baytex Trust Guarantee, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order each of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended a floating charge demand debenture, a debenture pledge agreement relating thereto and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and a general security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended Documents to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, Lenders’ Counsel in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.sole discretion;
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to Amendment and Restatement. The Existing Credit ------------------------------------------------- amendment and restatement of the Original Receivables Agreement shall be amended and restated in full as set forth herein on hereby is subject to the date condition precedent that the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified), indicated) dated (or dated as of) the date this amendment and restatement shall become effective and in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderAgent:
(ia) Executed counterparts of this This Agreement, duly executed by the Borrower, Transferor and the Administrative Agent, the Required Lenders and each Extending Lender.initial Servicer;
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ixb) A copy of the resolutions of the Board of Directors of the Transferor approving this Agreement, and the other Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby, certified by its Secretary or Assistant Secretary; a certificate copy of the resolutions of the Board of Directors of IKON Capital approving this Agreement, and the other Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby, certified by its Secretary or Assistant Secretary; a copy of the resolutions of the Board of Directors of IKON Office approving the Support Agreement, certified by its Secretary or Assistant Secretary;
(c) Good standing certificates for IKON Office issued by the Secretaries of State of Pennsylvania and Ohio; good standing certificates for the Transferor issued by the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in Delaware; good standing or presently subsisting under certificates for IKON Capital issued by the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary Secretaries of State of each jurisdiction in which any Loan Party or any general partner or managing memberDelaware, as applicableGeorgia, of each Loan Party is required to be qualified to do businessWashington, dated reasonably near the date of the initial BorrowingMinnesota, stating that such Person is duly qualified Michigan, Texas and in good standing as a foreign corporation, limited partnership or limited liability company, as applicableColorado, in such State and has filed all annual reports required to be filed each case dated as of a recent date acceptable to the date of such certificate.Agent;
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xiid) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, of the Transferor and IKON Capital certifying the names and true signatures of the officers or managersauthorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it (on which certificate the Agent and the Transferee may conclusively rely until such time as the Agent shall receive from the Transferor a revised certificate meeting the requirements of this subsection (d)); --------------
(e) The Articles of Incorporation of the Transferor, IKON Capital and IKON Office, duly certified by the Secretary of State of Delaware and the Secretary of State of Ohio, as applicable, as of a recent date acceptable to Agent, together with a copy of the By-laws of the Transferor, IKON Capital and IKON Office, duly certified by the Secretary or an Assistant Secretary of the Transferor, IKON Capital or IKON Office, as the case may be;
(f) Acknowledgment copies of proper Financing Statements (Form UCC-1), substantially in the forms attached hereto as Exhibit ------- 5.01(f) (with such modifications, if any, as may be necessary or ------- appropriate to conform to the law, customary practice or standard forms of a particular jurisdiction), filed on or prior to the date of this amendment and restatement, naming (i) the Transferor as the debtor and transferor of Pool Receivables or an undivided interest therein and the Transferee as the secured party and transferee and (ii) IKON Capital as debtor and transferor of Pool Receivables, Transferor as the secured party and transferee and Transferee as assignee, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions (including those jurisdictions listed on Schedule 5.01(f) ---------------- hereto) to perfect the Transferee's Interest and the security interest granted to the Transferee under Article IX hereof; ----------
(g) A search report or reports provided in writing to the Agent by LEXIS Document Services, Inc. as of a recent date (or dates) acceptable to the Agent, listing all effective financing statements that name the Transferor or IKON Capital (including any prior names of such Person authorized Persons) as debtor and that are filed in the jurisdictions in which filings were made pursuant to sign on its behalf each Transaction Document to subsection (f) above and in such other -------------- jurisdictions that the Agent shall reasonably request, together with copies of such financing statements (none of which it is shall cover any Pool Receivables or is to be a party and the other documents to be delivered hereunder and thereunder.Contracts related thereto or interests therein or Collections or proceeds of any thereof);
(xiiih) Certified Duly executed copies of Designated Account Agreements with each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), Designated Account Banks; duly executed by or on behalf copies of the parties thereto and in form and substance satisfactory Post Office Box Agreements with respect to each Post Office Box;
(i) A favorable opinion of Xxxxx X. Xxxxxx, counsel to the LendersTransferor, together with all agreements, instruments IKON Capital and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit AgreementIKON Office, in each case, as substantially the Administrative Agent shall request.form of Exhibit 5.01(i); ---------------
(xivj) A certificatefavorable opinion of Xxxxx, Xxxxx & Xxxxx, counsel for the Agent, substantially in the form of Exhibit G hereto 5.01(j); ---------------
(the “Solvency Certificate”k) Acknowledgment copies of proper Financing Statements (Form UCC-1), attesting substantially in the form attached hereto as Exhibit ------- 5.01(k) (with such modifications, if any, as may be necessary or ------- appropriate to conform to the Solvency law, customary practice or standard forms of a particular jurisdiction), filed on or prior to the date of the Loan Parties before amendment and restatement in the jurisdictions of the principal places of business of the dealers listed on Schedule A-1, naming such dealers, ------------ respectively, as debtors and transferors of Receivables, IKON Capital as the secured party and transferee and Transferee as the assignee, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect IKON Capital's interest in the Receivables;
(l) Such powers of attorney as the Agent shall reasonably request to enable the Agent to collect all amounts due under any and all Pool Receivables, which powers of attorney shall be substantially in the form of Exhibit 5.01(l) or in such other form as the Agent may --------------- reasonably request;
(m) A Periodic Report as of the most recent Month End Date (in which the Transferee's Interest and the components thereof shall be calculated after giving effect to the Transaction, from the chief financial officer amendment and restatement);
(or person performing similar functionsn) A copy of the Borrower.Support Agreement, certified as true, correct and complete by an officer of IKON Office;
(xvo) A five year Business Plan letter executed by IKON Office substantially in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel Exhibit 5.01(o); ----------------
(p) An amendment to the Administrative Agent prior to the Effective Date.interest rate protection agreement between Transferor and DBNY, and an assignment agreement related thereto; and
(xviiiq) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent The Transfer Agreement duly executed by IKON Capital and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably requestTransferor.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Alco Standard Corp)
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date (the “Amendment Closing Date”) that the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or pdf electronic copies (followed promptly by originals) unless otherwise specified, each dated the Amendment Closing Date unless otherwise indicated, properly executed by a Responsible Officer of the signing Loan Party and in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement;
(ii) executed counterparts of the Guaranty Reaffirmation;
(iii) a Note, or, with respect to any Note issued prior to the Amendment Closing Date, a replacement Note, executed by the Borrower in favor of each Lender requesting a Note, if any;
(iv) the Security Agreement Reaffirmation, duly executed by each of the relevant Loan Parties;
(v) an Additional Party Addendum to the Intercreditor Agreement executed by Bank of America, as successor First Lien Collateral Agent, and the related officer’s certificates required by Section 8.3 of the Intercreditor Agreement;
(vi) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to this Agreement, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (ii) no Default or Event of Default exists immediately before or immediately after giving effect thereto, (iii) UHS and its Restricted Subsidiaries shall be in Pro Forma Compliance with the financial covenant set forth in Section 7.11 as of (A) the Amendment Closing Date and (B) the last day of the most recently ended determination period after giving Pro Forma Effect to the Amendment Closing Date, the making of any Credit Extensions on the Amendment Closing Date and any Investment or Disposition to be consummated in connection therewith;
(vii) a Request for Credit Extension relating to the Credit Extensions to be made on the Amendment Closing Date (if any) in accordance with the requirements hereof;
(viii) an opinion of Weil, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties in the form of Exhibit H, addressed to each Agent and each Lender and in customary form and substance reasonably satisfactory to the Administrative Agent;
(ix) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(x) 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 of such Loan Party 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; and
(xi) a certificate in the form of Exhibit L hereto, attesting to the solvency of UHS, before and after the Amendment Closing Date, from the chief financial officer of UHS on behalf of UHS (the “Solvency Certificate”).
(b) Since December 31, 2011, there shall not have occurred any event, circumstance or occurrence that, either separately or together with all other such events, circumstances or occurrences, that has had or could reasonably be expected to have, a Material Adverse Effect.
(c) The representations and warranties contained in Article 5 shall be true and correct in all material respects on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date.
(d) No Default shall exist before or after giving effect to the Amendment Closing Date, or would result from any Credit Extension to be made on the Amendment Closing Date, or from the application of the proceeds therefrom.
(e) All fees and expenses required to be paid hereunder or under the Existing Credit Agreement on or before the Amendment Closing Date and invoiced (with reasonable supporting documentation) and delivered to the Borrower at least one (1) day before the Amendment Closing Date shall have been paid in full in cash.
(f) The Administrative Agent shall have received on all documentation and other information with respect to each Loan Party required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.
(g) The Administrative Agent shall have received:
(i) all documentation (including assignments of financing statements, filings, recordations and Collateral Documents) necessary or before advisable in the day reasonable judgment of the initial Borrowing Administrative Agent to effectuate the followingresignation of GE as Administrative Agent and Collateral Agent and the appointment of Bank of America as successor Administrative Agent and Collateral Agent;
(ii) acknowledgments of all filings or recordations necessary to perfect the Collateral Agent’s Liens in the Collateral, each dated such day (unless otherwise specified), in form as well as UCC and substance Lien searches and other evidence reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (that such Liens are the only Liens upon the Collateral, except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this AgreementPermitted Liens; provided that, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order extent any of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed ’s Liens in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary are not or desirable in order to perfect cannot be perfected on the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except Amendment Closing Date to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(DLiens that may be perfected by the filing of UCC financing statements) after the Borrower’s use of commercially reasonable efforts to do so, then the perfection of such Liens in such Collateral shall not constitute a Perfection Certificate, duly executed by or on behalf of each condition precedent to the effectiveness of the Loan PartiesAmendment Closing Date, and
(E) evidence that all other actions, recordings but instead shall be required to be obtained after the Amendment Closing Date pursuant to arrangements and filings that timing to be mutually agreed by the Administrative Agent or and the Collateral Agent may deem necessary or desirable Borrower acting reasonably but in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of any event no later than 30 days following the Amendment to the Note Purchase Agreement, dated Closing Date (or such later date as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable agree in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.its sole discretion);
(viiiiii) Certified copies certificates of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, insurance with respect to the Transaction Loan Parties’ property and each Transaction Document to which it is or is to be liability insurance, together with a party.
(ix) A copy of a certificate of loss payable endorsement naming the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial BorrowingCollateral Agent as loss payee, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope reasonably satisfactory to the Administrative Agent.;
(xviiv) [Intentionally omitted].the results of a satisfactory final, pre-closing field examination conducted by Bank of America and/or a third party; and
(xviiv) A favorable opinion a Borrowing Base Certificate prepared by the Borrower as of Xxxx Xxxxxx Xxxxxxxxx Mains PLLCMay 31, counsel for the Loan Parties2012, addressed to accompanied by such supporting detail and documentation as shall be reasonably requested by the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The This amendment and restatement of the Existing Credit Agreement shall be amended become effective on and restated in full as set forth herein of the first date (the “Effective Date”) on the date which the following conditions precedent have been satisfied (or waived in writing):satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2012.
(b) The Administrative Borrower shall have notified the Agent, on behalf of the Lenders, in writing as to the proposed Effective Date.
(c) The Borrower shall have paid all accrued fees and expenses then due and payable of the Agent and the Lenders (including the accrued fees and expenses then due and payable of counsel to the Agent).
(d) On the Effective Date, the following statements shall be true and the 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 on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) The Agent shall have received on or before the day of the initial Borrowing Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Dateextent requested by any Lender pursuant to Section 2.15.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiiii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party the Board of Directors of the Borrower approving this Agreement and the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may beNotes, and of all documents evidencing other necessary corporate action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consentsapprovals, if any, with respect to this Agreement and the Transaction and each Transaction Document to which it is or is to be a partyNotes.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xiiiii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, the Borrower certifying the names and true signatures of the officers or managers, as applicable, of such Person the Borrower authorized to sign on its behalf each Transaction Document to which it is or is to be a party this Agreement and the Notes and the other documents to be delivered hereunder and thereunderhereunder.
(xiiiiv) Certified copies A favorable opinion of each Proskauer Rose LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Agent.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Related Documents not otherwise delivered pursuant to this Section 3.01(a)Agent, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Credit Agreement (Celgene Corp /De/)
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date Each of the following conditions have been satisfied (or waived in writing):is a condition precedent to the effectiveness hereof:
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing the followingproperly completed UCC Financing Statements (and including amendments and assignments with respect thereto, each dated such day (unless otherwise specified), if applicable) in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in number sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect or continue the Liens created under the Security Agreementperfection of Agent’s and Collateral Agent’s liens and instruments shall have been so filed, covering the Collateral described in the Security Agreement (except registered or recorded to the extent such satisfaction of Agent or Collateral is fixtures or “as extracted” collateral),Agent;
(Cb) certified all requisite corporate or limited liability company action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent in good faith, and Agent shall have received all information and copies of UCCall documents, United States Patent including records of requisite corporate or limited liability company action and Trademark Office proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and United States Copyright Office, tax including a copy of the certificate or articles of incorporation or formation of each Borrower and judgment lien searches, Guarantor certified by the Secretary of State (or equivalent reports Governmental Authority) which shall set forth the same complete corporate or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies limited liability company name of such financing statements and documents) that name any Loan Party Borrower or Guarantor 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 set forth herein and such other searches that are required by document as shall set forth the Perfection Certificate organizational identification number of each Borrower or that the Administrative Agent Guarantor, if one is issued in its jurisdiction of incorporation or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liensformation),;
(Dc) a Perfection Certificateno Material Adverse Effect shall have occurred since October 29, duly executed by or on behalf of each of the Loan Parties, and2011;
(Ed) evidence that all Agent shall have received reports and other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except information with respect to fixture filings related the Collateral as Agent may request in good faith, which shall reveal results reasonably satisfactory to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.Agent;
(ve) Executed counterparts of Agent shall have received (i) the Amended Intercreditor AgreementPurchase Documents, in form and substance reasonably satisfactory to Arrangers, duly executed and delivered by the Collateral Agentparties thereto, and (ii) evidence, in form and substance reasonably satisfactory to Arrangers, that the Administrative Agent, the holders of the Senior Notes that Purchase Documents have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, been duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formationappropriate parties thereto, and the absence of any proceeding for the dissolution Merger Effective Time has occurred prior to or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection contemporaneously with the Note Purchase effectiveness of this Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.;
Appears in 1 contract
Samples: Loan and Security Agreement (Spirit Realty Capital, Inc.)
Conditions Precedent to Amendment and Restatement. The As conditions precedent to the amendment and restatement of the Existing Credit Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):effectiveness of this Agreement:
(a1) The Administrative Agent Borrower shall have received on delivered or before shall have caused to be delivered to the day of the initial Borrowing the following, each dated such day (unless otherwise specified)Administrative Agent, in form and substance satisfactory to the Administrative Agent Agent, the Lenders and their counsel and duly executed by the appropriate Persons (unless otherwise specified) and (except for the Notes) in with sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(iLenders), in each case as amended, of the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together withfollowing:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,This Agreement;
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order A Swing Line Note payable to perfect the Liens created under the Security Agreementeach Swing Line Lender and, covering the Collateral described in the Security Agreement (except to the extent requested by any Lender pursuant to Section 1.8(6) above, a Revolving Loan Note payable to such Collateral is fixtures or “as extracted” collateral),Lender;
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),The REIT Guaranty;
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing the general partner or managing member, as applicable, certifying the names and true signatures of the officers Borrower attaching and certifying (i) the Certificate of Limited Partnership or managersequivalent registered Organizational Document of the Borrower, certified as applicableof a recent date by the Secretary of State of the State of Delaware, (ii) the limited partnership agreement or equivalent Organizational Document of the Borrower, (iii) the resolutions duly adopted by the Board of Directors of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party general partner approving the execution, delivery and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each performance of the Related Loan Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto Borrower, (iv) a certificate of authority and good standing or analogous documentation for the Borrower dated as of a recent date from the Secretary of State of the State of Delaware and (v) a certificate of incumbency containing the name, title and true signature of each officer of such general partner authorized to sign the Loan Documents to which the Borrower is a party on behalf of the Borrower;
(E) A certificate of the Secretary or Assistant Secretary of MAC attaching and certifying (i) the Articles of Incorporation or equivalent registered Organizational Document of MAC, certified as of a recent date by the Secretary of State of the State of Maryland, (ii) the bylaws or equivalent Organizational Document of MAC, (iii) the resolutions duly adopted by the Board of Directors of MAC approving the execution, delivery and performance of the Loan Documents to which MAC is a party, (iv) a certificate of authority and good standing or analogous documentation for MAC dated as of a recent date from the Secretary of State of the State of Maryland and (v) a certificate of incumbency containing the name, title and true signature of each officer of MAC authorized to sign the Loan Documents to which MAC is a party on behalf of MAC;
(F) An opinion of counsel for the Borrower Parties as of the Closing Date, in form and substance reasonably acceptable to the Administrative Agent and the Lenders;
(G) From a Responsible Officer of MAC, a Closing Certificate dated as of the Closing Date;
(H) Confirmation from the Administrative Agent (which may be oral) that all fees required to be paid by the Borrower on or before the Closing Date have been, or will upon the initial funding of the Revolving Loans on the Closing Date be, paid in full;
(I) Evidence satisfactory to the LendersAdministrative Agent that all reasonable costs and expenses of the Administrative Agent, together with including, without limitation, fees of outside counsel and fees of third party consultants and appraisers, required to be paid by the Borrower on or prior to the Closing Date have been, or will upon the funding of the Revolving Loans on the Closing Date be, paid in full; and
(2) All representations and warranties of the Borrower Parties set forth herein and in the other Loan Documents shall be accurate and complete in all agreementsmaterial respects as if made on and as of the Closing Date, instruments unless any such representation and other documents delivered warranty speaks as of a particular date, in connection with the Note Purchase Agreement, which case it shall be accurate and the Cavalier Credit Agreementcomplete in all material respects as of such date; provided that, in each case, any representation or warranty that is qualified as to materiality or Material Adverse Effect or similar language shall be true and correct in all respects.
(3) There shall not have occurred and be continuing as of the Closing Date any Event of Default or Potential Default.
(4) All acts and conditions (including, without limitation, the obtaining of any third party consents and necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Loan Documents by each of the Borrower Parties shall have been done and performed.
(5) There shall not have occurred any change, occurrence or development that could reasonably be expected, in the good faith opinion of the Administrative Agent shall requestor the Lenders, to have a Material Adverse Effect.
(xiv6) A certificateAll documentation, substantially including, without limitation, documentation for corporate and legal proceedings in connection with the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of transactions contemplated by the Loan Parties before and after giving effect to the TransactionDocuments, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan shall be satisfactory in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed substance to the Administrative Agent, the Collateral Agent Lenders and their counsel. The making of the initial Loans by the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved hereunder shall conclusively be deemed to constitute an acknowledgement by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation each Lender that each of the Transaction, and there conditions precedent set forth in this Section 5.1 shall have been no material adverse change satisfied in the status, accordance with its respective terms or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that irrevocably waived by such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its SubsidiariesPerson.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of the Prior Loan Agreement shall be amended and restated in full as set forth herein on the date Effective Date is subject to the following conditions have been satisfied (or waived in writing):
(a) The condition precedent that the Administrative Agent and the Lenders shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified)received, in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLenders, the following:
(ia) Executed counterparts scanned copies of this Agreement, the duly executed original signatures to the Loan Documents to be entered into on the Effective Date, including this Agreement and the Fee Letter (SVB);
(b) scanned copies of the Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State (or equivalent agency) of Borrower, the Administrative Agent, the Required Lenders ’s jurisdiction of organization or formation and each Extending Lender.
jurisdiction in which Borrower is qualified to conduct business except where the failure to do so could not reasonably be expected to have a material adverse effect on Borrower’s business, each as of a date no earlier than thirty (ii30) The Notes payable to the order of the Lenders that have requested Notes days prior to the Effective Date.;
(iiic) An amended and restated guaranty scanned copies of the completed Borrowing Resolutions for Borrower;
(d) scanned certified copies, dated as of a recent date, of financing statement searches, as the Administrative Agent may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i)any such financing statements either constitute Permitted Liens or have been or, in each case as amendedconnection with the initial Credit Extension, the “Subsidiary Guaranty”)will be terminated or released;
(e) scanned acknowledgment copies of proper financing statements, duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially filed on or before the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing Effective Date under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreementhereunder, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),Collateral;
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(Df) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A scanned copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable legal opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, Borrower’s counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel ;
(g) evidence satisfactory to the Administrative Agent prior to that the Effective Date.
(xviii) A favorable opinion insurance policies and endorsements required by Section 6.07 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, ;
(h) scanned copies of the Collateral Agent (i) documentation and other information requested by the Lenders in connection with applicable “know your customer” and dated as of the Effective Date, in substantially the form of the opinion preanti-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party money-laundering rules and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicableregulations, including, without limitation, the terms Patriot Act, in each case at least five (5) days prior to the Effective Date and conditions (ii) at least five (5) days prior to the Effective Date, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification;
(i) a scanned copy of a Borrowing Base Certificate for the period ending November 30, 2019;
(j) the Lenders shall have completed a due diligence investigation of Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of Borrower and its Subsidiaries and shall have received such financial, business and other information regarding each of the Constitutive Documents foregoing Persons and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and businesses as the tax status of the Borrower as being treated as a partnership for tax purposes.Lenders shall have requested;
(ck) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change shall have occurred since December 31, 2015.2017;
(dl) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to upon the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports confirming in writing to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from Borrower that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any all other conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically precedent set forth in Sections 3.01 have been satisfied, payment of the Fee Letters.fees and Bank Expenses then due as specified in Section 2.05 hereof, including any fees pursuant to Section 2.05(a);
(im) The Borrower’s all certificates or other instruments representing or evidencing any Pledged Interests, accompanied by appropriate duly executed instruments of transfer or assignment (including, without limitation, stock powers) in blank; and
(n) a scanned copy of a completed and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred executed Disbursement and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedRate Management Agreement.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit obligation of Lender to amend and restate the Original Loan Agreement shall be amended and restated in full as set forth herein on is subject to the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent condition precedent that Lender shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified)received, in form and substance satisfactory to Lender, the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lenderfollowing:
(ia) Executed counterparts Closing of Loan Sale Agreement with Comerica Bank and satisfaction of all terms thereof;
(b) this Agreement;
(c) an officer’s certificate of each Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.;
(iid) The Notes payable to the order assignment by Comerica of all the UCC National Form Financing Statements for each Borrower;
(e) the assignment by Comerica of the Lenders that have requested Notes prior to the Effective Date.intellectual property security agreement from each Borrower;
(iiif) An amended current SOS Reports indicating that except for Permitted Liens, there are no other security interests or Liens of record in the Collateral;
(g) the assignment and restated guaranty in substantially delivery by Comerica of the form of Exhibit D hereto (original certificate(s) for the Shares, together with each other guaranty and guaranty supplement delivered Assignment(s) Separate from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, andBorrowers to Lender in blank;
(Eh) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except Borrowers shall have obtained securities and/or deposit account control agreements with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to any accounts permitted hereunder which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely will also permit Lender to have a Material Adverse Effect free access to all available information on any account other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability payroll accounts held in trust for payment of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.employees;
(i) The Borrowerproof of insurance as required and policies or certificates of insurance;
(j) payment of the fees and Lender Expenses then due specified in Section 2.5 hereof;
(k) current financial statements, including audited statements for Parent’s most recently ended fiscal year, together with an unqualified opinion, company prepared consolidated and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded consolidating balance sheets and income statements for the most recently ended month in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit planSection 6.2, and such other updated financial information as Lender may reasonably request;
(iiil) no termination ofcurrent Compliance Certificate in accordance with Section 6.2;
(m) such other documents or certificates, and completion of such other matters, as Lender may reasonably deem necessary or withdrawal from, any such employee benefit plan shall have occurred appropriate;
(n) execution of the Purchase Agreement and be continuing or be contemplatedcompliance with all conditions to effectiveness of same including all deliverables thereunder; and
(o) updated Schedules and Exhibits to this Agreement current as of Closing Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Pac-West Telecomm Inc)
Conditions Precedent to Amendment and Restatement. The Existing Credit effectiveness of this Agreement shall be amended and restated in full as set forth herein on the date obligations of the Secured Parties hereunder are subject to the following conditions have been satisfied (or waived in writing):precedent being satisfied:
(a) The Administrative Notes shall have been executed by Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document not delivered under the Existing Loan and Security Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received on or before the day of the initial Borrowing the following, each dated such day (unless otherwise specified), in form all PPSA and substance other Lien searches and other evidence satisfactory to Agent that such Liens are the Administrative only Liens upon the Collateral, except Permitted Liens.
(c) The Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lendershall have received:
(i) Executed counterparts acknowledgment copies of this Agreementproper financing or filing statements, publications or recordations, duly executed by filed on or before the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing Closing Date under the UCC PPSA of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),Agent’s Lien; and
(Cii) certified 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 duly executed “Termination Statements” and such other searches that are required by instruments, in form and substance satisfactory to the Perfection Certificate or that Agent, as shall be necessary to terminate and discharge and satisfy all Liens on the Administrative Agent or Property of the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents Obligors (other than except Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(viid) Executed counterparts Agent shall have received all subordination and postponement agreements required pursuant to the terms hereof, including, as necessary, any amendment or restatements of the:
(i) ATB Intercreditor Agreement; and
(ii) the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Shareholder Subordination Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiie) Certified copies of the resolutions (or excerpts thereof) of Agent shall have received duly executed agreements establishing each Loan Party approving the Transaction (Dominion Account, in form and substance satisfactory to Agent, to the extent applicable to it) not delivered under the Existing Loan and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a partySecurity Agreement.
(ixf) A copy of Agent shall have received certificates, in form and substance satisfactory to it, from a certificate of the Secretary of State of the jurisdiction of organization or formation knowledgeable Senior Officer of each Loan Party Obligor certifying that, after giving effect to the Loans outstanding on the Closing Date and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s officetransactions hereunder, (B) that (Ii) such amendments are the only amendments to such Person’s charter Obligor is Solvent; (ii) no Default or similar Constitutive Documents on file in such Secretary’s office and Event of Default exists; (IIiii) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained set forth in Section 9 are true and correct; and (iv) such Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(g) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, or there have been no amendments thereto since November 2, 2006, (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents as though made on is true and as of the date of the initial Borrowing complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (Eiii) to the absence of any event occurring title, name and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary signature of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign the Loan Documents. Agent may conclusively rely on its behalf each Transaction Document to which this certificate until it is or is to be a party and otherwise notified by the other documents to be delivered hereunder and thereunderapplicable Obligor in writing.
(xiiih) Certified Agent shall have received a written opinion of XxXxxxxx Xxxxxxxx LLP as well as any local counsel to Obligors or Agent, in form and substance reasonably satisfactory to Agent.
(i) Agent shall have received compliance certificates, certificates of status, certificates d’attestation and good standing certificates for each Obligor, issued by the appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(j) Agent shall have received copies of each policies or certificates of insurance and binders of Insurance for the Related insurance policies carried by Obligors with requisite loss payable endorsements, all in compliance with the Loan Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the LendersAgent, together with all agreements, instruments to the extent not delivered under the Existing Loan and other documents delivered in connection with the Note Purchase Security Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xivk) A certificateAgent shall have completed its legal due diligence of Obligors, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope with results satisfactory to the Administrative Agent.
(xvi1) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated shall have received a Borrowing Base Certificate prepared as of the Effective DateSeptember 28, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date2009.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Loan and Security Agreement (South Texas Supply Company, Inc.)
Conditions Precedent to Amendment and Restatement. The Existing This Agreement shall be effective upon, and the Original Credit Agreement shall be amended and restated in full as set forth herein on the date provided upon, the following conditions have been satisfied (or waived in writing):being satisfied:
(a) The Administrative all fees and expenses previously agreed to in writing between the Borrower and each of the Lead Arranger, the Agent and the Lenders shall be paid by the Borrower to the Lead Arranger, the Agent or the Lenders, as applicable, including: (i) a fee, payable to the Agent, for each Lender which will have increased its aggregate Commitments from the aggregate amount of the Commitments for such Lender in the Original Credit Agreement (the "Increasing Lenders"), in Canadian Dollars in an amount equal to [Redacted] of the increased amount of each such Lender's aggregate Commitments (the "Increased Commitments"); and (ii) an extension fee, payable to the Agent, for each Lender, in Canadian Dollars in an amount equal to [Redacted] of the aggregate amount of each such Lender's Commitments, provided that the Increasing Lenders shall not receive the aforementioned extension fee on any Increased Syndicated Facility Commitment provided by such Increasing Lenders;
(b) the Borrower and each corporate Subsidiary which is executing and delivering Documents shall have received on delivered to the Agent a current certificate of status, compliance or before good standing, as the day case may be, in respect of its jurisdiction of formation and certified copies of its constating documents, by-laws and the resolutions authorizing the Documents to which it is a party to be executed in connection herewith and the transactions thereunder and an Officer's Certificate as to the incumbency of the initial Borrowing officers of the followingBorrower or the Subsidiary, as the case may be, signing the Documents to which it is a party;
(c) each Subsidiary which is not a corporation and which is executing and delivering Documents shall have delivered, or caused to be delivered, to the Agent certificates as to the matters set forth in Section 3.2(b) with respect to the general partner thereof or other separate legal person executing and delivering the Documents on its behalf, and, in addition, shall have delivered to the Agent certified copies of the partnership agreement, declaration of trust or other agreements or instruments creating or governing the same;
(d) the Borrower shall have delivered to the Agent and the Lenders a true and complete copy of the Confidential Offering Memorandum together with an Officer's Certificate certifying the same to the Agent and the Lenders;
(e) the Borrower and each of the Material Subsidiaries which has previously executed and delivered Security shall have executed and delivered to the Agent a confirmation respecting the Security previously executed and delivered by it or its predecessors, each dated such day (unless otherwise specified), Document to be in form and substance satisfactory to the Administrative Agent and Xxxxxxx' Counsel in their sole discretion;
(unless otherwise specifiedf) the Agent and (except for the Notes) in sufficient copies for Lenders shall have received legal opinions from each Lender:
of (i) Executed counterparts of this Agreement, duly executed by legal counsel to the Borrower, the Administrative Agent, the Required Lenders Borrower and each Extending Lender.
its Subsidiaries and (ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searchesLenders' Counsel, 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered Lenders in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.their sole discretion;
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (iig) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) Default or Event of Default shall have occurred and be continuing as to any such employee benefit planand each of the representations and warranties set forth in Section 9.1 shall be true and correct in all respects, and (iii) no termination of, or withdrawal from, any such employee benefit plan the Borrower shall have occurred delivered to the Agent and the Lenders an Officer's Certificate certifying the same to the Agent and the Lenders;
(h) the Security and other Documents shall have been fully executed and delivered, each in form and substance satisfactory to the Lenders (acting reasonably), and all registrations, filings and recordings necessary or desirable (as determined by the Lenders’ Counsel, acting reasonably) in connection with the Security shall have been made and completed; and
(i) the Agent and the Lenders shall have received all such other documentation and information reasonably requested from the Borrower and its Subsidiaries in connection with any AML Legislation as may be continuing or be contemplatedrequired in accordance with Section 16.15 hereof.
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date (the “Amendment Closing Date”) that the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day Agent’s receipt of the initial Borrowing the following, each dated such day of which shall be originals or facsimiles or pdf electronic copies (followed promptly by originals) unless otherwise specified), each dated the Amendment Closing Date unless otherwise indicated, properly executed by a Responsible Officer of the signing Loan Party and in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderAgent:
(i) Executed executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.;
(ii) The Notes payable to the order executed counterparts of the Lenders that have requested Notes prior to the Effective Date.Guaranty Reaffirmation;
(iii) An amended and restated guaranty a Note, or, with respect to any Note issued prior to the Amendment Closing Date, a replacement Note, executed by the Borrower in substantially favor of each Lender requesting a Note, if any;
(iv) the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”)Security Agreement Reaffirmation, duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the relevant Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.;
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.[Intentionally Omitted];
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State Borrower signed by a Responsible Officer of the jurisdiction of organization or formation of each Loan Party Borrower certifying that, before and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as after giving effect to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s officethis Agreement, (Bi) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in Article 5 and the other Loan Documents as though made are true and correct in all material respects on and as of the date Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (ii) no Default or Event of Default exists immediately before or immediately after giving effect thereto, (iii) UHS and its Restricted Subsidiaries shall be in Pro Forma Compliance with the financial covenant set forth in Section 7.11 as of (A) the Amendment Closing Date and (B) the last day of the initial Borrowing and (E) most recently ended determination period after giving Pro Forma Effect to the absence Amendment Closing Date, the making of any event occurring Credit Extensions on the Amendment Closing Date and continuing, any Investment or resulting from the initial Borrowing, that constitutes a Default.Disposition to be consummated in connection therewith;
(xiivii) A certificate a Request for Credit Extension relating to the Credit Extensions to be made on the Amendment Closing Date (if any) in accordance with the requirements hereof;
(viii) an opinion of Sidley Austin LLP, special counsel to the Secretary Loan Parties, addressed to each Agent and each Lender and in customary form and substance reasonably satisfactory to the Administrative Agent;
(ix) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or an Assistant Secretary formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(x) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.may reasonably require evidencing the identity, authority and capacity of each Responsible Officer of such Loan Party 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; and
(xivxi) A certificate, substantially a certificate in the form of Exhibit G hereto L hereto, attesting to the solvency of UHS and its Restricted Subsidiaries, on a consolidated basis, as of the Amendment Closing Date before and after giving effect to the Transactions occurring on the Amendment Closing Date, from the chief financial officer of UHS on behalf of UHS and its Restricted Subsidiaries (the “Solvency Certificate”).
(b) Since December 31, attesting 2014, there shall not have occurred any event, circumstance or occurrence that, either separately or together with all other such events, circumstances or occurrences, that has had or could reasonably be expected to have, a Material Adverse Effect.
(c) The representations and warranties contained in Article 5 shall be true and correct in all material respects on and as of the Amendment Closing Date, except to the Solvency extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of the Loan Parties such earlier date.
(d) No Default shall exist before and or after giving effect to the TransactionAmendment Closing Date, or would result from any Credit Extension to be made on the Amendment Closing Date, or from the chief financial officer (or person performing similar functions) application of the Borrowerproceeds therefrom.
(xve) A five year Business Plan in form All fees and scope satisfactory expenses required to be paid hereunder or under the Existing Credit Agreement on or before the Amendment Closing Date and invoiced (with reasonable supporting documentation) and delivered to the Administrative AgentBorrower at least one (1) day before the Amendment Closing Date shall have been paid in full in cash.
(xvif) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no No action, suit, investigation, litigation or proceeding affecting the General Partner, pending or threatened in any Loan Party court or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority arbitrator or governmental instrumentality shall exist that in Administrative Agent’s or the Joint Lead Arrangers’ judgment (ia) would could reasonably be reasonably likely expected to have a Material Adverse Effect or could impair any Loan Party’s ability to perform satisfactorily under the Loan Documents; or (b) could reasonably be expected to materially and adversely affect the Loan Documents or the transactions contemplated thereby.
(g) The Administrative Agent shall have received all documentation and other than information with respect to each Loan Party required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the matters Patriot Act.
(h) The Administrative Agent shall have received:
(i) acknowledgments of all filings or recordations necessary to perfect the Collateral Agent’s Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (that such Liens are the “Disclosed Litigation”) or only Liens upon the Collateral, except Permitted Liens;
(ii) purports to affect the legality, validity or enforceability certificates of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection insurance with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable respect to the Lenders) Loan Parties’ property and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have liability insurance, together with a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and loss payable endorsement naming the Collateral Agent (including the reasonable fees as loss payee, all in form and expenses of Shearman & Sterling LLP, counsel substance reasonably satisfactory to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.; and
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination ofa Borrowing Base Certificate prepared by the Borrower as of September 30, or withdrawal from2015, any accompanied by such employee benefit plan supporting detail and documentation as shall have occurred and be continuing or be contemplatedreasonably requested by the Administrative Agent.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):
(a) The Administrative Agent shall have received on or before the day of the initial Borrowing Effective Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, MLP, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A An amended and restated pledge and security agreement, agreement in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) to the extent not previously delivered, certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) to the extent not previously filed and in effect, UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties[Intentionally omitted].
(vi) Executed counterparts For any Mortgaged Property that is a Flood Hazard Property, (A) the Borrower’s written acknowledgment of receipt of written notification from the Amendment Collateral Agent as to the Note Purchase Agreement, dated fact that such Mortgaged Property is a Flood Hazard Property and as of to whether the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined community in which each such Flood Hazard Property is located is participating in the Note Purchase AgreementNational Flood Insurance Program and (B) evidence that Borrower has complied with the insurance requirements of Section 5.01(d)(ii).
(vii) Executed counterparts of the The Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), as amended and restated, duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Transaction Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of 80 Alliance Resource such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Transaction Party and (if applicable) each general partner or managing member of each Loan Transaction Party dated reasonably near the date of the initial BorrowingEffective Date, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Transaction Party or any general partner or managing member, as applicable, of each Loan Transaction Party is required to be qualified to do business, dated reasonably near the date of the initial BorrowingEffective Date, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Transaction Party or on its behalf by the managing general partner, general partner or managing member, as applicable, of each Loan Transaction Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing Effective Date (the statements made in which certificate shall be true on and as of the date of the initial BorrowingEffective Date), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial BorrowingEffective Date, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing Effective Date and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, continuing that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Transaction Party or on its behalf by its managing general partner, general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each caseIndenture, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted]A certificate from the chief financial officer (or person performing similar functions) of the Borrower designating the Minerals Subsidiaries that will become Unrestricted Subsidiaries on the Effective Date, certifying that such designation meets the requirements of Section 5.01(q) and attaching a structure chart which identifies all the Subsidiaries of the Borrower as of the Effective Date.
(xvii) A favorable opinion of Xxxx Rxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Transaction Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLCGableGotwals, New York counsel for the Loan Transaction Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Transaction Party and the partnership, limited liability company or corporate structure of each Loan Transaction Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Transaction Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The This amendment and restatement of the Existing Credit Agreement shall be amended become effective on and restated in full as set forth herein of the first date (the “Effective Date”) on the date which the following conditions precedent have been satisfied (or waived in writing):satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2017.
(b) The Administrative Borrower shall have notified the Agent, on behalf of the Lenders, in writing as to the proposed Effective Date.
(c) The Borrower shall have paid (i) all accrued fees and expenses then due and payable of the Agent and the Lenders (including the accrued fees and expenses then due and payable of counsel to the Agent) and (ii) all principal, accrued interest and other amounts outstanding under the Existing Credit Agreement.
(d) On the Effective Date, the following statements shall be true and the 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 on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) The Agent shall have received on or before the day of the initial Borrowing Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Dateextent requested by any Lender pursuant to Section 2.15.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viiiii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party the Board of Directors of the Borrower approving this Agreement and the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may beNotes, and of all documents evidencing other necessary corporate action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consentsapprovals, if any, with respect to this Agreement and the Transaction and each Transaction Document to which it is or is to be a partyNotes.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xiiiii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, the Borrower certifying the names and true signatures of the officers or managers, as applicable, of such Person the Borrower authorized to sign on its behalf each Transaction Document to which it is or is to be a party this Agreement and the Notes and the other documents to be delivered hereunder and thereunderhereunder.
(xiiiiv) Certified copies A favorable opinion of each Proskauer Rose LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Agent.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Related Documents not otherwise delivered pursuant to this Section 3.01(a)Agent, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Credit Agreement (Celgene Corp /De/)
Conditions Precedent to Amendment and Restatement. The Existing Credit amendment and restatement of the Original Agreement shall be amended and restated in full as set forth herein conditioned on the date satisfaction or waiver of the following conditions have been satisfied (or waived in writing):conditions:
(a) The Administrative Agent shall have Buyer has received on or before the day of the initial Borrowing the followingfollowing documents, each dated such day (the Restatement Date or as of the Restatement Date unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
: (i) Executed counterparts of this Agreement, duly executed by the BorrowerCustodial Agreement, the Administrative AgentFee Letter, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amendedGuarantee Agreement, the “Subsidiary Guaranty”)Servicer Letter Agreement, duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party related Trust Agreement and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments Seller’s Power of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searchesAttorney, 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agentparties thereto, the Administrative Agent(ii) an official good standing certificate dated a recent date with respect to Seller, the holders each Trust and Guarantor, (iii) certificates of the Senior Notes that have agreed to consent to the provisions thereof secretary or an assistant secretary of Seller, each Trust, Servicer and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, Guarantor together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the Governing Documents and applicable resolutions (or excerpts thereof) and the incumbencies and signatures of officers of Seller, each Loan Party approving Trust, Servicer and Guarantor executing the Transaction (to the extent applicable to it) and each Transaction Document Repurchase Documents to which it is or is to be a party and/or authorizing party, evidencing the general partnerrespective authority of Seller, managing member or officerseach Trust, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, Servicer and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, Guarantor with respect to the Transaction execution, delivery and performance thereof, (iv) a Closing Certificate, (v) an executed Seller’s Power of Attorney in the form of Exhibit I with respect to Seller, (vi) [reserved], and (vii) such opinions from counsel to Seller, each Transaction Document Trust, Servicer and Guarantor as Buyer may require, including with respect to which it is corporate matters, enforceability, non-contravention, no consents or is approvals required other than those that have been obtained, first priority perfected security interests in the Purchased Assets and any other collateral pledged pursuant to be a party.the Repurchase Documents, Investment Company Act matters, non-consolidation and the applicability of Bankruptcy Code and “securities contract” safe harbor;
(ixb) A copy UCC financing statements have been filed against Seller in all filing offices required by Buyer, (ii) Buyer has received such searches of a certificate of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to Seller, each Trust and Guarantor and the Secretary of State of the jurisdiction of organization or formation of each Loan Party Purchased Assets as Buyer may reasonably require, and (if applicableiii) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents results of such Person searches are reasonably satisfactory to Buyer; and
(c) Buyer has received payment from Seller of all fees and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting expenses then payable under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party Fee Letter and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of Repurchase Documents, as contemplated by Section 13.02, including without limitation the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit AgreementFacility Fee, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency extent due and payable on or before the Restatement Date. Each Confirmation delivered by Seller shall constitute a certification by Seller that all of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer conditions precedent in this Article 6 (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee LettersSections 6.02(e) or 6.01(d), 6.01(e) or 6.02(g) (solely with respect to Custodian) have been satisfied.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
Appears in 1 contract
Samples: Master Repurchase Agreement and Securities Contract (Altisource Residential Corp)
Conditions Precedent to Amendment and Restatement. The This Agreement shall become effective and the Existing Credit Agreement shall be amended and restated as provided in full as set forth herein this Agreement on the date the Agent sends notice to each Bank and the Borrower that the following conditions precedent have been satisfied (or waived in writing):met:
(a) The Administrative Agent the Borrower shall have received delivered or shall have caused to be delivered the documents and other items listed on or before EXHIBIT F (other than those documents and items listed under the day heading "Post Closing"), together with any other documents requested by the Agent to document the agreements and intent of the initial Borrowing the followingCredit Documents, each dated such day (unless otherwise specified), in form and with substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:Agent;
(ib) Executed counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and immediately after giving effect to this Agreement and the Transaction, from outstanding Revolving Credit Loan and the chief financial officer (or person performing similar functions) Letter of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative AgentCredit Exposure, the Collateral Agent lesser of (i) Revolving Credit Commitments and the Lenders and dated as of Borrowing Base MINUS (ii) the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the outstanding Revolving Credit Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as Letter of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.Credit Exposure is at least $8,000,000;
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of and expenses due to the Administrative AgentBanks under this Agreement, the Collateral Agent, the Joint Lead Arrangers including Section 2.4 and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable any fees and expenses of Shearman & Sterling LLP, counsel payable under Section 8.1;
(d) the Agent shall have received and be satisfied with a duly completed and executed Borrowing Base Certificate as of date acceptable to the Administrative Agent;
(e) the Borrower shall have delivered to the extent such fees and expenses have been invoiced at least 24 hours Agent (i) a schedule of Receivables as of a date acceptable to the Agent prior to the date hereof or are specifically set of this Agreement setting forth in a detailed aged trail balance of all of its then existing Receivables, specifying the Fee Letters.
(i) The Borrower’s name of and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, balance due from each Account Debtor obligated on a Receivable so listed; (ii) no “reportable event” (a schedule of Inventory as defined in ERISAof a date acceptable to the Agent prior to the date of this Agreement, but excluding events for which reporting has been waived) shall have occurred itemizing and be continuing as to any such employee benefit plandescribing the kind, type, quantity and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred location of Inventory of the Credit Parties and be continuing or be contemplated.the cost thereof; and
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date Each of the following conditions have been satisfied (or waived in writing):is a condition precedent to the effectiveness hereof:
(a) The Administrative all requisite corporate and limited liability company action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of all documents, including records of requisite corporate and limited liability company action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or limited liability company managers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation or formation);
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair in any material respect the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(c) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may reasonably require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(d) Agent shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement on or before the day date hereof, each Borrower is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to the initial Borrowing borrowings under the following, each dated such day (unless otherwise specified)Financing Agreements, in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:Agent;
(ie) Executed counterparts of this AgreementAgent shall have received, duly executed by the Borrower, the Administrative in form and substance reasonably satisfactory to Agent, the Required Lenders all consents, waivers, acknowledgments and each Extending Lender.
(ii) The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered agreements from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral third persons which Agent may deem necessary or desirable in order to permit, protect and perfect the Liens created under the Security Agreement, covering its security interests in and liens upon the Collateral described in or to effectuate the Security provisions or purposes of this Agreement (except to and the extent such other Financing Agreements, including, without limitation, Collateral is fixtures or “as extracted” collateral),Access Agreements;
(Cf) certified copies of UCCthe Excess Availability as determined by Agent in good faith, 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and delivered Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements and Investment Property Control Agreements by the and among Agent, each Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporationGuarantor, as the case may bebe and each bank, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors securities intermediary or other similar actionPerson where such Borrower (or Guarantor) and governmental and has a deposit account, investment account or other third party approvals and consentsaccount, if any, including with respect to the Transaction Preferred Stock Portfolio, in each case, duly authorized, executed and each Transaction Document to which it is delivered by such bank, securities intermediary or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such other Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter Borrower or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnershipGuarantor, as the case may be, organized be (or formed under Agent shall be the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of bank’s customer with respect to such Person, (D) the truth of the representations and warranties contained in the Loan Documents deposit account as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.Agent may specify);
(xiih) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing memberAgent shall have received evidence, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the LendersCollateral (other than, together with respect to perfection only, the Excluded Property);
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all agreementsjurisdictions in which assets of Borrowers and Guarantors are located, instruments which search results shall be in form and substance reasonably satisfactory to Agent;
(j) Agent shall have received originals of the certificates and membership interest certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other documents delivered in connection with the Note Purchase Agreement, than Parent) and the Cavalier Credit Agreementowned by any Borrower or Guarantor, in each case, as the Administrative case together with stock powers duly executed in blank with respect thereto;
(k) Agent shall request.have received a borrowing request and a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(xivl) A certificateAgent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope substance reasonably satisfactory to the Administrative Agent., and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(xvim) [Intentionally omitted].
(xvii) A favorable Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to Borrowers and Guarantors with respect to the Administrative Agent, Financing Agreements and the security interests of Agent with respect to the Collateral Agent and the Lenders and dated such other matters as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.;
(bn) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there Agent shall have occurred no Material Adverse Change since December 31received evidence, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters in form and substance satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, that the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ ESOP is an “employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable eventstock ownership plan” (as defined in Section 4975(e)(7) of the Code and Section 407(d)(6) of ERISA, but excluding events for which reporting has been waived) and is qualified under Section 401(a) of the Code; and
(o) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have occurred been duly executed and be continuing as delivered to any such employee benefit planAgent, in form and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedsubstance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing This Agreement shall be effective upon, and the Third Amended and Restated Credit Agreement shall be amended and restated in full as set forth herein on the date provided upon, the following conditions have been satisfied (or waived in writing):being satisfied:
(a) The Administrative Agent the Borrower shall have received on or before paid to the day Agent, for the account of the initial Borrowing relevant Lenders, the followingfees previously agreed to be paid by the Borrower in respect of the execution and delivery of this Agreement;
(b) the Borrower shall have executed and delivered a replacement agency fee agreement with the Agent and shall have paid to the Agent, for its own account, the fees then payable thereunder;
(c) the Parent and each of its Material Subsidiaries shall have delivered to the Agent, if applicable, a current certificate of status, compliance or good standing, as the case may be, in respect of its jurisdiction of incorporation, certified copies of its constating documents, by laws and the resolutions authorizing the Documents to which it is a party and the transactions thereunder and an officers' certificate as to the incumbency of the officers thereof signing the Documents to which it is a party;
(d) each of the Material Subsidiaries shall have executed and delivered to the Agent a confirmation respecting the Security previously executed and delivered by it or its predecessors, each dated such day (unless otherwise specified), Document to be in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) Lxxxxxx' Counsel in sufficient copies for each Lender:their sole discretion;
(ie) Executed counterparts of this Agreement, duly the Parent shall have executed by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.
(ii) The Notes payable delivered to the order of the Lenders that have requested Notes prior to the Effective Date.
(iii) An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or on behalf of confirmation respecting each of the Loan PartiesSubordination Agreement, andthe Parent Guarantee and the other Security previously executed by it, such Documents to be in form and substance satisfactory to the Agent and Lenders' Counsel in their sole discretion;
(Ef) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related Borrower shall have delivered to the Mortgaged Properties Agent a Compliance Certificate, demonstrating and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of certifying the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formationdetermination of, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing memberBorrower's compliance, as applicableat March 31, certifying 2011, with, inter alia, the names and true signatures of the officers or managersfinancial covenants in Section 10.4 on a pro forma basis, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with acting reasonably;
(g) the Note Purchase Agreement, Agent and the Cavalier Credit AgreementLenders shall have received legal opinions from each of (i) Alberta legal counsel to the Parent and its Subsidiaries and (ii) Lenders' Counsel in form and substance as may be required by the Lenders in their sole discretion;
(h) no Default or Event of Default shall have occurred and be continuing and each of the representations and warranties set forth in Section 9.1 shall be true and correct in all respects, in each case, as of the Administrative Agent date of the effectiveness of this Agreement, and the Borrower shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting have delivered to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of an Officer's Certificate certifying the Effective Date, in substantially the form of the opinion pre-approved by counsel same to the Administrative Agent prior to and the Effective Date.Lenders; and
(xviiii) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders shall have received all such other documentation and dated as of information reasonably requested from the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party Borrower and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained any "know your customer" or shall anti-money laundering legislation as may be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letters.
(i) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded required in accordance with the minimum statutory requirements, (ii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedSection 16.15 hereof.
Appears in 1 contract
Conditions Precedent to Amendment and Restatement. The Existing amendment and restatement of the Credit Agreement shall be amended and restated in full as set forth herein pursuant to this Amendment is subject to the satisfaction, on the date or before March 31, 2003, of the following conditions have been satisfied precedent (or waived unless otherwise defined in writingthis Paragraph 4, each defined term used in this Paragraph 4 has the meaning given such term in the Amended and Restated Credit Agreement):
(a) The Unless waived by all Lenders, receipt by Administrative Agent shall have received on or before the day of the initial Borrowing each of the following, each dated such day of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer, each dated on, or in the case of third-party certificates, recently before, the Effective Date and each in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lenderits legal counsel:
(i) Executed counterparts of this the Guarantee Agreement, duly executed and delivered by the Borrower, the Administrative Agent, the Required Lenders and each Extending Lender.Guarantor;
(ii) The Notes payable Such certificates of resolution or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may request to establish the identities of and verify the authority and capacity of each Responsible Officer of each Loan Party authorized to act as a Responsible Officer of each Loan Party with respect to this Amendment and the Amended and Restated Credit Agreement;
(iii) Such evidence as Administrative Agent may request to verify that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of its organizational documents and certificates of good standing and/or qualification to engage in business;
(iv) A certificate signed by a Responsible Officer of Borrower certifying (x) that the conditions specified in Paragraphs 4(h) and 4(i) of this Amendment have been satisfied, (y) that there has been no event or circumstance since December 31, 2001 that has a Material Adverse Effect, and (z) as to the order Debt Ratings of Parent as of the Effective Date;
(v) An opinion of counsel to the Loan Parties in form and substance reasonably satisfactory to Administrative Agent; and
(vi) Such other customary certificates, documents or opinions as Administrative Agent or Required Lenders may reasonably require.
(b) Prior to or substantially simultaneously with such amendment and restatement, Comcast Corporation and Broadband shall have merged into separate, wholly-owned subsidiaries of Parent in accordance with the terms of the Merger Agreement, the other Transactions contemplated by the Merger Agreement shall have been consummated in accordance with the terms of the Merger Agreement, and no provision of the Merger Agreement shall have been waived, amended, supplemented or otherwise modified in any manner which is materially adverse to the interests of Lenders.
(c) All material governmental and third party approvals necessary in connection with the Transactions and the financing thereof shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transactions or the financing thereof.
(d) Lenders shall have requested Notes prior received the Reference Statements.
(e) Borrower shall have delivered a satisfactory pro forma consolidated balance sheet of (i) Parent and its Subsidiaries and (ii) the Restricted Group, in each case as at the date of the most recent consolidated balance sheet of Borrower included in the Reference Statements, adjusted to give effect to the consummation of the Transactions and the financing thereof as if such transactions had occurred on such date.
(f) The organizational and capital structure of Parent and its Subsidiaries, including the liabilities of the Subsidiaries of Parent, shall be substantially as described in the Confidential Information Memorandum dated March, 2002.
(g) Parent's Debt Rating, after giving effect to the consummation of the Transactions and the financing thereof, shall be BBB- or better by S&P and Baa3 or better by Moody's.
(h) The representations and warranties made by Borrower in the Amended and Restated Agreement, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection with the Amended and Restated Agreement, shall be correct in all material respects on and as of the Effective Date.
(iiii) An amended No Default or Event of Default shall have occurred and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.
(iv) A pledge and security agreement, in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the “Security Agreement”), duly executed by each Loan Party and the Collateral Agent, together with:
(A) certificates and instruments, if any, representing the securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement (except to the extent such Collateral is fixtures or “as extracted” collateral),
(C) certified 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 or the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(D) a Perfection Certificate, duly executed by or continuing on behalf of each of the Loan Parties, and
(E) evidence that all other actions, recordings and filings that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement (except with respect to fixture filings related to the Mortgaged Properties and “as-extracted” collateral filings) has been taken.
(v) Executed counterparts of the Amended Intercreditor Agreement, duly executed and delivered by the Collateral Agent, the Administrative Agent, the holders of the Senior Notes that have agreed to consent to the provisions thereof and acknowledged and agreed by each of the Loan Parties.
(vi) Executed counterparts of the Amendment to the Note Purchase Agreement, dated as of the date hereof, duly executed and delivered by the Borrower and the Required Holders (as defined in the Note Purchase Agreement).
(vii) Executed counterparts of the Patent Security Agreement and the Trademark Security Agreement (as each such term is defined in the Security Agreement), duly executed by the applicable Loan Parties and the Collateral Agent, together with evidence that all action that the Administrative Agent or the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under such Patent Security Agreement and Trademark Security Agreement has been taken.
(viii) Certified copies of the resolutions (or excerpts thereof) of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership, limited liability company or corporation, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the initial Borrowing, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such amendments are the only amendments to such Person’s charter or similar Constitutive Documents on file in such Secretary’s office and (II) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(x) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the initial Borrowing, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(xi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the date of the initial Borrowing, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xiii) Certified copies of each of the Related Documents not otherwise delivered pursuant to this Section 3.01(a), duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement, and the Cavalier Credit Agreement, in each case, as the Administrative Agent shall request.
(xiv) A certificate, substantially in the form of Exhibit G hereto (the “Solvency Certificate”), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(xv) A five year Business Plan in form and scope satisfactory to the Administrative Agent.
(xvi) [Intentionally omitted].
(xvii) A favorable opinion of Xxxx Xxxxxx Xxxxxxxxx Mains PLLC, counsel for the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date.
(xviiij) A favorable opinion of Xxxxx Xxxxxx Xxxxx PLLC, New York counsel for the Loan Parties, addressed to the Unless waived by Administrative Agent, the Collateral Agent and the Lenders and dated as of the Effective Date, in substantially the form of the opinion pre-approved by counsel to the Administrative Agent prior to the Effective Date, covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(b) The Lenders shall be satisfied with the capitalization of each Loan Party and the partnership, limited liability company or corporate structure of each Loan Party and its managing general partner or managing member, as applicable, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2015.
(d) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lenders) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(f) The Borrower shall have paid all accrued fees Attorney Costs of the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the Lenders and all reasonable expenses of the Administrative Agent and the Collateral Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel to the Administrative Agent) to the extent such fees and expenses have been invoiced at least 24 hours prior to or on the date hereof or are specifically set forth in the Fee LettersEffective Date.
(ik) The Borrower’s and its Subsidiaries’ employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no “reportable event” Effective Date (as defined in ERISA, but excluding events for which reporting has been waivedthe Parent Revolving and Term Credit Agreement) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplatedoccurred.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Comcast Cable Communications Inc)
