Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed or waived pursuant to Section 13.1. (a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) Xxxxxxxx & Xxxxx LLP, counsel to the Credit Parties and (ii) Xxxxx Xxxxxx LLP, as special Louisiana counsel to the Credit Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iii) in form and substance customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions. (c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below: (i) a copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official); (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying: (A) that attached thereto is a true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, (C) that the certificate or articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and (E) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above. (d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., as collateral agent for the Senior Secured Term Loan B Facility, the Borrower and the Guarantors. (i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement and each other Security Document that is required to be executed on the Closing Date, duly executed by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent. (ii) All Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank. (iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of organization. (f) The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of the Purchase and Sale Agreement. The Purchase and Sale Agreement shall not have been amended or waived in any material respect by the Borrower and the Borrower shall not have granted any material consent under the Purchase and Sale Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed). (g) The Specified Purchase Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing Date and the Administrative Agent shall have received a certificate of an authorized officer of the borrower certifying as to the satisfaction of such condition. (h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount shall have been made or shall be made substantially concurrently with the initial Borrowing under this Agreement. (i) The Lead Arrangers shall have received, and hereby confirm that they have received, the Historical Financial Information. (j) The Administrative Agent shall have received a pro forma capitalization table of the Borrower and its Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i). (k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower. (l) The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (i) obtain and effect all insurance required to be maintained pursuant to the Credit Documents and (ii) to have the Administrative Agent named as loss payee and/or additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named. (m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility. (n) The Administrative Agent (or its counsel) shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by the filing of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates of the Borrower’s Wholly owned Domestic Subsidiaries that are Material Subsidiaries) is not or cannot be provided and/or perfected on the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of security interests in such Collateral shall not constitute conditions precedent to the initial Borrowing under this Agreement, but shall be required to be delivered, provided, and/or perfected within the later of (x) (i) in the case of Mortgages required to be delivered pursuant to the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following the Closing Date and (y) the time periods specified on Schedule 9.13(b).
Appears in 5 contracts
Samples: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedentprecedent on or prior to April 16, 2021, except as otherwise agreed or waived pursuant to Section 13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) Xxxxxxxx & Xxxxx LLP, counsel to the Credit Parties and (ii) Xxxxx Xxxxxx LLPXxxxxx, as special Louisiana counsel to the Credit Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iii) in form and substance customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i) and (ii), (ii) and and, in the case of the Borrower, the item referred to in subclause (iii) below:
(i) a copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official);
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(iii) a certificate of a Financial Officer of the Borrower to the effect that (x) no Default or Event of Default exists and (y) since December 31, 2019, no event has occurred and is continuing, individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect and which certificate shall set forth the calculations demonstrating that, as of the Closing Date (i) the Borrower and its Restricted Subsidiaries were in compliance with a Consolidated Total Net Leverage Ratio of no more than 2.25:1.00 and (ii) after giving effect to the Closing Date Loans, the Liquidity of the Borrower and its Restricted Subsidiaries is no less than $250,000,000.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of a joinder to the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., the Administrative Agent as collateral agent for the Senior Secured Term Loan B Facility, the Borrower and the GuarantorsParties.
(i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement Agreement, Mortgages on at least 90% of the PV-9 of the Credit Parties’ total Proved Reserves included in the Initial Reserve Report and each other Security Document that is required to be executed on the Closing Date, duly executed by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent.
(ii) All Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of organization.
(f) The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of the Purchase and Sale Contribution Agreement. The Purchase and Sale Contribution Agreement shall not have been amended or waived in any material respect by the Borrower PubCo and the Borrower PubCo shall not have granted any material consent under the Purchase and Sale Contribution Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed). Upon the consummation of the Acquisition, the Borrower and Restricted Subsidiaries shall own at least 98% of the PV-9 value set forth in the Initial Reserve Report.
(g) The Specified Purchase Agreement Representations All representations and warranties made by any Credit Party contained herein or in the Specified Representations other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an authorized officer of the borrower certifying as to the satisfaction of such condition.
(h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount Closing Date IPO shall have been made successfully consummated, or shall be made consummated substantially concurrently with the initial Borrowing under this Agreement, and gross proceeds of no less than $300,000,000 shall have been contributed, or shall be contributed substantially concurrently with the initial Borrowing under this Agreement, to the Borrower.
(i) The Lead Arrangers Second Lien Credit Agreement shall have receivedbeen amended to establish a “First Lien Facility Cap” (as defined therein) of $350,000,000, in form and hereby confirm that they have received, substance reasonably satisfactory to the Historical Financial InformationAdministrative Agent.
(j) The Administrative Agent shall have received a pro forma capitalization table of the Borrower and its Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i)[reserved].
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(l) The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (i) obtain and effect all insurance required to be maintained pursuant to the Credit Documents and (ii) to have cause the Administrative Agent to be named as loss payee and/or additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named.
(m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility.
(n) The Administrative Agent (or its counsel) shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information (including a Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, including the Beneficial Ownership Regulation and the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding .
(o) The Administrative Agent (or its counsel) shall have received (i) the foregoingInitial Reserve Report and (ii) satisfactory title information (including customary title opinions, to information or reports or other documents) consistent with usual and customary standards for the extent any security interest geographic regions in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by which the filing Borrowing Base Properties are located, taking into account the size, scope and number of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates leases and xxxxx of the Borrower’s Wholly owned Domestic Subsidiaries that are Material Borrower and its Restricted Subsidiaries) is , with respect to not or cannot be provided and/or perfected less than 85% of the PV-9 value of the Borrowing Base Properties on the Closing Date (subject to extensions approved by provided that the Administrative Agent may waive the requirements of the preceding clause (ii) in its reasonable discretiondiscretion so long as the Administrative Agent (or its counsel) after shall have received satisfactory title information (including customary title opinions, information or reports or other documents) consistent with usual and customary standards for the Borrower’s use geographic regions in which the Borrowing Base Properties are located, taking into account the size, scope and number of commercially reasonable efforts leases and xxxxx of the Borrower and its Restricted Subsidiaries, with respect to do so without undue burden not less than 50% of the PV-9 value of the Borrowing Base Properties on the Closing Date).
(p) The Administrative Agent shall have received evidence reasonably satisfactory to it that (i) the Existing Vine RBL Credit Agreement (ii) the Third Lien Credit Agreement and (iii) the Existing Brix Credit Agreement have been terminated, or expense, the provision and/or perfection of security interests in such Collateral shall not constitute conditions precedent to be terminated substantially concurrently with the initial Borrowing under this Agreement, but that all related outstanding obligations (however defined) have been discharged or released. or shall be required discharged or released substantially concurrently with the initial Borrowing under this Agreement, and Liens securing such agreements and obligations shall have been terminated and/or released, or shall be terminated and/or released substantially concurrently with the initial Borrowing under this Agreement,. Without limiting the generality of the provisions of Section 12.4, for purposes of determining compliance with the conditions specific in this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be deliveredsatisfied with, provided, and/or perfected within the later of (x) (i) in the case of Mortgages each document or other matters required under this Section 6 to be delivered pursuant consented or approved by or acceptable or satisfactory to a Lender unless the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following Administrative Agent shall have received notice from such Lender prior to the Closing Date and (y) the time periods specified on Schedule 9.13(b)specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Vine Energy Inc.)
Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedentprecedent on or prior to April 16, 2021, except as otherwise agreed or waived pursuant to Section 13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) Xxxxxxxx & Xxxxx LLP, counsel to the Credit Parties and (ii) Xxxxx Xxxxxx LLPXxxxxx, as special Louisiana counsel to the Credit Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iii) in form and substance customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i) and (ii), (ii) and and, in the case of the Borrower, the item referred to in subclause (iii) below:
(i) a copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official);
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(iii) a certificate of a Financial Officer of the Borrower to the effect that (x) no Default or Event of Default exists and (y) since December 31, 2019, no event has occurred and is continuing, individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect and which certificate shall set forth the calculations demonstrating that, as of the Closing Date (i) the Borrower and its Restricted Subsidiaries were in compliance with a Consolidated Total Net Leverage Ratio of no more than 2.25:1.00 and (ii) after giving effect to the Closing Date Loans, the Liquidity of the Borrower and its Restricted Subsidiaries is no less than $250,000,000.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of a joinder to the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., the Administrative Agent as collateral agent for the Senior Secured Term Loan B Facility, the Borrower and the GuarantorsParties.
(i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement Agreement, Mortgages on at least 90% of the PV-9 of the Credit Parties’ total Proved Reserves included in the Initial Reserve Report and each other Security Document that is required to be executed on the Closing Date, duly executed by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent.
(ii) All Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of organization.
(f) The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of the Purchase and Sale Contribution Agreement. The Purchase and Sale Contribution Agreement shall not have been amended or waived in any material respect by the Borrower PubCo and the Borrower PubCo shall not have granted any material consent under the Purchase and Sale Contribution Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed). Upon the consummation of the Acquisition, the Borrower and Restricted Subsidiaries shall own at least 98% of the PV-9 value set forth in the Initial Reserve Report.
(g) The Specified Purchase Agreement Representations All representations and warranties made by any Credit Party contained herein or in the Specified Representations other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an authorized officer of the borrower certifying as to the satisfaction of such condition.
(h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount Closing Date IPO shall have been made successfully consummated, or shall be made consummated substantially concurrently with the initial Borrowing under this Agreement, and gross proceeds of no less than $300,000,000 shall have been contributed, or shall be contributed substantially concurrently with the initial Borrowing under this Agreement, to the Borrower.
(i) The Lead Arrangers shall have received, and hereby confirm that they have received, the Historical Financial Information[reserved].
(j) The Administrative Agent shall have received a pro forma capitalization table of the Borrower and its Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i)[reserved].
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(l) The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (i) obtain and effect all insurance required to be maintained pursuant to the Credit Documents and (ii) to have cause the Administrative Agent to be named as loss payee and/or additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named.
(m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility.
(n) The Administrative Agent (or its counsel) shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information (including a Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, including the Beneficial Ownership Regulation and the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding .
(o) The Administrative Agent (or its counsel) shall have received (i) the foregoingInitial Reserve Report and (ii) satisfactory title information (including customary title opinions, to information or reports or other documents) consistent with usual and customary standards for the extent any security interest geographic regions in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by which the filing Borrowing Base Properties are located, taking into account the size, scope and number of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates leases and xxxxx of the Borrower’s Wholly owned Domestic Subsidiaries that are Material Borrower and its Restricted Subsidiaries) is , with respect to not or cannot be provided and/or perfected less than 85% of the PV-9 value of the Borrowing Base Properties on the Closing Date (subject to extensions approved by provided that the Administrative Agent may waive the requirements of the preceding clause (ii) in its reasonable discretiondiscretion so long as the Administrative Agent (or its counsel) after shall have received satisfactory title information (including customary title opinions, information or reports or other documents) consistent with usual and customary standards for the Borrower’s use geographic regions in which the Borrowing Base Properties are located, taking into account the size, scope and number of commercially reasonable efforts leases and xxxxx of the Borrower and its Restricted Subsidiaries, with respect to do so without undue burden not less than 50% of the PV-9 value of the Borrowing Base Properties on the Closing Date).
(p) The Administrative Agent shall have received evidence reasonably satisfactory to it that (i) the Existing Vine RBL Credit Agreement (ii) the Third Lien Credit Agreement and (iii) the Existing Brix Credit Agreement have been terminated, or expense, the provision and/or perfection of security interests in such Collateral shall not constitute conditions precedent to be terminated substantially concurrently with the initial Borrowing under this Agreement, but that all related outstanding obligations (however defined) have been discharged or released. or shall be required discharged or released substantially concurrently with the initial Borrowing under this Agreement, and Liens securing such agreements and obligations shall have been terminated and/or released, or shall be terminated and/or released substantially concurrently with the initial Borrowing under this Agreement,. Without limiting the generality of the provisions of Section 12.4, for purposes of determining compliance with the conditions specific in this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be deliveredsatisfied with, provided, and/or perfected within the later of (x) (i) in the case of Mortgages each document or other matters required under this Section 6 to be delivered pursuant consented or approved by or acceptable or satisfactory to a Lender unless the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following Administrative Agent shall have received notice from such Lender prior to the Closing Date and (y) the time periods specified on Schedule 9.13(b)specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Vine Energy Inc.)
Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed or waived pursuant to Section 13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent itself and the LendersSecured Parties on the Closing Date, a written opinions opinion of (i) Xxxxxxxx Xxxxxx & Xxxxx Xxxxxx LLP, counsel to the Credit Parties Parties, and (ii) Xxxxx Xxxxxx LLP, as special Louisiana each local counsel to the Credit Partiesspecified on Schedule 6(b), in each case, case (iA) dated the Closing Date, (iiB) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iiiC) in form and substance customary for transactions of this typereasonably satisfactory to the Administrative Agent. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel counsels to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official);
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date immediately prior to and after the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and
(iii) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent Guarantee shall be in full force and effect.
(or its counsele) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor Except for any items referred to on the Closing Date, and of the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., as collateral agent for the Senior Secured Term Loan B Facility, the Borrower and the Guarantors.Schedule 9.13(b):
(i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement and each Agreement, all other Security Document that is required to be executed on the Closing DateDocuments and other documents and instruments, duly executed including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with none of the Collateral shall be subject to any other pledges, security interests or mortgages, except for Liens permitted under Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent10.2.
(ii) All Equity Interests of the Borrower and all Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(iii) The Administrative Except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (individually) that is owing to the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to the Collateral Agreement, and the Collateral Agent shall have received customary UCC lien searches all such promissory notes, together with undated instruments of transfer with respect to thereto endorsed in blank.
(iv) All Indebtedness of the Borrower and each of the Guarantors Restricted Subsidiaries that is owing to any Credit Party shall be evidenced by the Intercompany Note, which shall be executed and delivered by the Borrower and each of the Restricted Subsidiaries and shall have been pledged pursuant to the Collateral Agreement, and the Collateral Agent shall have received such Intercompany Note, together with undated instruments of transfer with respect thereto endorsed in their applicable jurisdictions of organizationblank.
(f) The Acquisition Each of the Corporate Reorganization and Merger Transactions, the Junior Lien Note Exchange and each other transaction contemplated under the Transaction Agreement, shall have been consummated, or shall be consummated substantially concurrently simultaneously with the initial Borrowing under this Agreement, will be consummated, in all material respects in accordance with the terms of the Purchase and Sale Transaction Agreement. The Purchase and Sale Agreement shall not have been amended , without giving effect to any modification, consent or waived in any material respect by the Borrower and the Borrower shall not have granted any material consent under the Purchase and Sale Agreement in a manner waiver thereto that is materially adverse to the interests of the Administrative Agent, the Collateral Agent or the Lenders (in their capacity capacities as such) without the consent of each of the Lead Arrangers (not to be unreasonably withheld or delayed)Administrative Agent, the Collateral Agent and the Lenders.
(g) The Specified Purchase Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing Date and the Administrative Agent shall have received a certificate of an authorized officer of the borrower certifying as to the satisfaction of such condition[Intentionally Blank.]
(h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount shall have been made or shall be made substantially concurrently with the initial Borrowing under this Agreement.
(i) The Lead Arrangers shall have received, and hereby confirm that they have received, the Historical Financial Information.
(j) The Administrative Agent shall have received (i) true, correct and complete copies of the Historical Financial Statements, (ii) a pro forma balance sheet as of December 31, 2017, for the Borrower and its Restricted Subsidiaries after giving effect to the Transactions, and (iii) a pro forma capitalization table of the Borrower and its Restricted Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i)Transactions.
(ki) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(lj) The Administrative Agent Agents shall have received evidence that the Borrower shall have made commercially reasonable efforts all fees payable thereto or to any Lender (iincluding any agent and arranger in respect of this Facility) obtain and effect all insurance required on or prior to be maintained pursuant to the Credit Documents and (ii) to have the Administrative Agent named as loss payee and/or additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named.
(m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by and, to the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility.
(n) The Administrative Agent (or its counsel) shall have received extent invoiced at least three (3) Business Days prior to the Closing Date Date, all other amounts due and payable pursuant to the Credit Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxxx LLP) required to be reimbursed or paid by the Credit Parties hereunder or under any Credit Document.
(k) The Administrative Agent and the Lenders shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent and the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding without limitation the PATRIOT Act.
(l) Since December 31, 2017, no change, event, circumstance, development, state of facts, or condition shall have occurred (or existed, as applicable) that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(m) The Administrative Agent and each of the Lenders shall have received the Initial Reserve Report and the Closing Date Reserve Report.
(n) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.3(a)(i) or, in the case of a Letter of Credit Extension, the Patriot Act, that has been requested by applicable Issuing Bank and the Administrative Agent shall have received a Letter of Credit Application as required by Section 3.2(a).
(o) The Administrative Agent shall have received the Intercreditor Agreement executed and delivered by the Borrower, each Subsidiary Guarantor, and each other representative of the Junior Lien Notes.
(p) The Administrative Agent shall have received Mortgages, executed and delivered by a duly Authorized Officer of the applicable Credit Parties in writing sufficient counterparts for the prompt recordation thereof, encumbering Mortgaged Properties that constitute Borrowing Base Properties evaluated in the Initial Reserve Report having a PV-10 sufficient to satisfy the Collateral Coverage Minimum.
(q) After giving effect to all Loans to be made and Letters of Credit to be issued hereunder and the consummation of the Transactions on the date of the initial Credit Event, Availability shall be not less than $300,000,000.
(r) The Administrative Agent shall have received (i) customary UCC lien search results with respect to the Borrower and the other Credit Parties in their respective jurisdictions of formation and (ii) county-level real property search results for the counties in which the Borrowing Base Properties are located.
(s) No litigation by any Person or Governmental Authority shall be pending or threatened (i) with respect to the Transaction Agreement or the Transactions contemplated therein, this Agreement or any Credit Document or (ii) that the Administrative Agent shall determine has had, or could reasonably be expected to have, a Material Adverse Effect or materially and adversely affect this Agreement or the Collateral.
(t) The Administrative Agent shall be reasonably satisfied with the environmental condition of the Borrowing Base Properties.
(u) The Administrative Agent shall have received satisfactory title information with respect to Oil and Gas Properties of the Borrower and its Restricted Subsidiaries (including Stone Energy and its Subsidiaries) comprising at least 85% of the PV-10 of all of the Proved Reserves evaluated in the Initial Reserve Report.
(v) The Administrative Agent shall have received copies of insurance certificates, if applicable, evidencing the insurance required to be maintained by the Borrower and the Subsidiaries pursuant to Section 9.3, each of which shall name the Secured Parties as additional insureds on any such liability insurance and name the Collateral Agent as additional loss payee under any such property insurance, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(w) The Administrative Agent shall have received the schedule of Hedge Transactions described in Section 8.20 prepared as of a reasonably recent date (not exceeding ten (10) Business Days prior to the Closing Date).
(x) After giving effect to the Transactions, none of Holdings, the Borrower or its or their Restricted Subsidiaries shall have any outstanding Indebtedness or preferred Equity Interests other than (i) the Loans and Letters of Credit, (ii) the Junior Lien Notes, (iii) the Stone Energy Notes, and (iv) other Indebtedness permitted under Section 10.1.
(y) The Administrative Agent shall have received duly executed mortgage releases and terminations, terminations of any financing statements and terminations of control agreements, with respect to any and all Liens, in each case, encumbering the properties or assets (including Oil and Gas Properties) of the Borrower or its Restricted Subsidiaries (including Stone Energy and its Subsidiaries), including, without limitation, any mortgages, financing statements, control agreements and other security documents securing the Existing Credit Agreements, except to the extent any such Lien constitutes a Permitted Lien.
(z) The Administrative Agent and the Lenders shall have completed with satisfactory results all other business, legal, environmental, tax, financial and accounting due diligence with respect to the Borrower and its Restricted Subsidiaries, Stone Energy and its Subsidiaries and the Transactions. The Administrative Agent shall notify the Borrower, the Issuing Banks and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by the filing of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates obligations of the Borrower’s Wholly owned Domestic Subsidiaries that Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 13.1) at or prior to 11:59 p.m., New York City time, on May 31, 2018 (and, in the event such conditions are Material Subsidiaries) is not so satisfied or cannot be provided and/or perfected on the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expensewaived, the provision and/or perfection of security interests in Commitments shall terminate at such Collateral shall not constitute conditions precedent to the initial Borrowing under this Agreement, but shall be required to be delivered, provided, and/or perfected within the later of (x) (i) in the case of Mortgages required to be delivered pursuant to the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following the Closing Date and (y) the time periods specified on Schedule 9.13(btime).
Appears in 1 contract
Samples: Credit Agreement (Talos Energy Inc.)
Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed or waived pursuant to Section 13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent itself and the LendersSecured Parties on the Closing Date, a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx LLP, counsel to the Credit Parties Parties, and (ii) Xxxxx Xxxxxx LLP, as special Louisiana each local counsel to the Credit Partiesspecified on Schedule 6(b), in each case, case (iA) dated the Closing Date, (iiB) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iiiC) in form and substance customary for transactions of this typereasonably satisfactory to the Administrative Agent. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel counsels to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official);
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) a certificate of a director or an officer as to the incumbency and specimen signature absence of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., as collateral agent any pending proceeding for the Senior Secured Term Loan B Facility, the Borrower and the Guarantors.
(i) The Administrative Agent (dissolution or its counsel) shall have received copies liquidation of the Collateral Agreement and each other Security Document that is required to be executed on the Closing Date, duly executed by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent.
(ii) All Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of organization.
(f) The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of the Purchase and Sale Agreement. The Purchase and Sale Agreement shall not have been amended or waived in any material respect by the Borrower and the Borrower shall not have granted any material consent under the Purchase and Sale Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed).
(g) The Specified Purchase Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing Date and the Administrative Agent shall have received a certificate of an authorized officer of the borrower certifying as to the satisfaction of such condition.
(h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount shall have been made or shall be made substantially concurrently with the initial Borrowing under this Agreement.
(i) The Lead Arrangers shall have received, and hereby confirm that they have received, the Historical Financial Information.
(j) The Administrative Agent shall have received a pro forma capitalization table of the Borrower and its Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i).
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(l) The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (i) obtain and effect all insurance required to be maintained pursuant to the Credit Documents and (ii) to have the Administrative Agent named as loss payee and/or additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named.
(m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility.
(n) The Administrative Agent (or its counsel) shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by the filing of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates of the Borrower’s Wholly owned Domestic Subsidiaries that are Material Subsidiaries) is not or cannot be provided and/or perfected on the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of security interests in such Collateral shall not constitute conditions precedent to the initial Borrowing under this Agreement, but shall be required to be delivered, provided, and/or perfected within the later of (x) (i) in the case of Mortgages required to be delivered pursuant to the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following the Closing Date and (y) the time periods specified on Schedule 9.13(b).Party; and
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed or waived pursuant to Section 13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent itself and the LendersSecured Parties on the Closing Date, a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxx LLP, counsel to the Credit Parties Parties, and (ii) Xxxxx Xxxxxx LLP, as special Louisiana each local counsel to the Credit Partiesspecified on Schedule 6(b), in each case, case (iA) dated the Closing Date, (iiB) addressed to the Administrative Agent, the Collateral Agent, the Lenders and each Issuing Bank and (iiiC) in form and substance customary for transactions of this typereasonably satisfactory to the Administrative Agent. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel counsels to deliver such legal opinions.. -107- 727670773 12335469
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below:
: (i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official);
; (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
: (A) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
, (C) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
, (D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent Guarantee shall be in full force and effect.
(or its counsele) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor Except for any items referred to on the Closing Date, and of the Intercreditor Agreement, executed by Xxxxxx Xxxxxxx Senior Funding, Inc., as collateral agent for the Senior Secured Term Loan B Facility, the Borrower and the Guarantors.Schedule 9.13(b): -108- 727670773 12335469
(i) The Administrative Agent (All documents and instruments, including Uniform Commercial Code or its counsel) shall have received copies of the Collateral Agreement other applicable personal property and each other Security Document that is required to be executed on the Closing Datefinancing statements, duly executed reasonably requested by each Credit Party party thereto, together with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Collateral Agent may deem reasonably necessary to (A) be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and (B) comply with none of the Collateral shall be subject to any other pledges, security interests or mortgages, except for Liens permitted under Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent10.2.
(ii) All Equity Interests of the Borrower and all Equity Interests of each wholly-owned Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to Collateral Agreement the Security Agreements (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent (or, in respect of the Term/Notes Priority Collateral, the collateral agent under the Senior Secured Term Loan Facility) shall have received all certificates, if any, representing such securities pledged under the Collateral AgreementSecurity Agreements, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(iii) The Administrative Except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (individually) that is owing to the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to the Security Agreements, and the Collateral Agent shall have received customary UCC lien searches all such promissory notes, together with undated instruments of transfer with respect to thereto endorsed in blank.
(iv) All Indebtedness of the Borrower and each of the Guarantors in their applicable jurisdictions of organization.
(f) The Acquisition shall have been consummated, or Restricted Subsidiaries that is owing to any Credit Party shall be consummated substantially concurrently with evidenced by the initial Borrowing under this AgreementIntercompany Note, in accordance with the terms of the Purchase which shall be executed and Sale Agreement. The Purchase and Sale Agreement shall not have been amended or waived in any material respect delivered by the Borrower and each of the Borrower Restricted Subsidiaries and shall not have granted any material consent under the Purchase and Sale Agreement in a manner materially adverse been pledged pursuant to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed).
(g) The Specified Purchase Agreement Representations Security Agreements, and the Specified Representations shall be true and correct in all material respects on the Closing Date and the Administrative Collateral Agent shall have received a certificate such Intercompany Note, together with undated instruments of an authorized officer of the borrower certifying as to the satisfaction of such condition.
(h) The Equity Investment in an aggregate amount not less than the Minimum Equity Amount shall have been made or shall be made substantially concurrently with the initial Borrowing under this Agreement.
(i) The Lead Arrangers shall have received, and hereby confirm that they have received, the Historical Financial Information.
(j) The Administrative Agent shall have received a pro forma capitalization table of the Borrower and its Subsidiaries after giving effect to the Transactions and prepared based solely on the information delivered pursuant to Section 6.1(i).
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(l) The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (i) obtain and effect all insurance required to be maintained pursuant to the Credit Documents and (ii) to have the Administrative Agent named as loss payee and/or additional insured under each insurance policy transfer with respect to such insurance as to which the Administrative Agent shall have requested to be so namedthereto endorsed in blank.
(m) All fees and expenses required to be paid hereunder and invoiced at least three (3) Business Days before the Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (including from the proceeds of the initial funding under the Senior Secured Term Loan Facilities) or netted from the proceeds of the initial funding under the Facility.
(n) The Administrative Agent (or its counsel) shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date. Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than any a lien on Collateral that may be perfected solely (A) by the filing of a financing statement under the Uniform Commercial Code or (B) by the delivery of stock certificates of the Borrower’s Wholly owned Domestic Subsidiaries that are Material Subsidiaries) is not or cannot be provided and/or perfected on the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of security interests in such Collateral shall not constitute conditions precedent to the initial Borrowing under this Agreement, but shall be required to be delivered, provided, and/or perfected within the later of (x) (i) in the case of Mortgages required to be delivered pursuant to the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other Collateral not otherwise described in the preceding clause (i), 90 days following the Closing Date and (y) the time periods specified on Schedule 9.13(b).
Appears in 1 contract
Samples: Credit Agreement (EP Energy Corp)
