Conditions to Effective Date It shall be a condition to the Effective Date that each of the following conditions shall have been satisfied or waived as of such date, and upon such satisfaction or waiver, this Agreement shall be effective:
(a) this Agreement shall have been duly executed and delivered by the parties hereto;
(b) the VMTP Shares shall have a long-term issue credit rating of AAA (or its equivalent) from at least one Rating Agency on the Effective Date;
(c) the Fund shall have obtained from Moody’s written confirmation that the issuance of the VMTP Shares by the Fund will not, in and of itself, result in a reduction, placement on review for possible downgrade, or withdrawal of the ratings then assigned by Moody’s to the Auction Preferred Shares;
(d) receipt by the Purchasers of executed originals, or copies certified by a duly authorized officer of the Fund to be in full force and effect and not otherwise amended, of all Related Documents (other than the global shares representing the VMTP Shares), as in effect on the Effective Date, and an incumbency certificate with respect to the authorized signatories thereto;
(e) receipt by the Purchasers of opinions of counsel for the Fund, substantially to the effect of Exhibit A;
(f) except as disclosed in the Offering Memorandum, there shall not be any pending or threatened material litigation of the nature described in Section 4.5 (unless such pending or threatened litigation has been determined by each of the Purchasers to be acceptable);
(g) the fees and expenses payable no later than the Effective Date pursuant to Section 2.2(b)(i) hereof shall have been paid;
(h) Each of the Purchasers, in its reasonable discretion, shall be satisfied that no change in law, rule or regulation (or their interpretation or administration), in each case, shall have occurred which will adversely affect the consummation of the transaction contemplated by this Agreement;
(i) there shall have been delivered to the Purchasers any additional documentation and financial information, including satisfactory responses to its due diligence inquiries, as it reasonably deems relevant; and
(j) there shall have been delivered to the Purchasers such information and copies of documents, approvals (if any) and records certified, where appropriate, of trust proceedings as any of the Purchasers may have reasonably requested relating to the Fund’s entering into and performing this Agreement and the other Related Documents to which it is a party, and the transactions contemplated hereby and thereby. The Fund and each of the Purchasers agree that consummation of the Purchase pursuant to this Agreement shall constitute acknowledgment that the foregoing conditions have been satisfied or waived.
Conditions to the Effective Date The obligation of each Lender to amend and restated the Existing Credit Agreement and continue the Loans hereunder on the Effective Date is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) duly executed counterparts of this Agreement, the Guaranty, the Securities Pledge Agreement, each Security Agreement Supplement, each Intellectual Property Security Agreement Supplement, and the other Loan Documents by each Loan Party, the Administrative Agent, the Collateral Agent and Lenders, as applicable;
(ii) such certificates or resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(iii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Effective Date, from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
(iv) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Effective Date after giving effect to the Transaction and the other transactions contemplated hereby and thereby, from the chief financial officer of the Parent in substantially the form of Exhibit I hereto;
(v) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vi) an opinion by Dxxxxxxxx Wxxxxx PLLC, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) As of the Effective Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03(b). All amounts due or outstanding in respect of the Fast Pay Indebtedness and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03(b) shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) (A) to the extent applicable, updated schedules to this Agreement and (B) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated as of the Effective Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens); and
(iii) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(i)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The CL Media Acquisition Agreement shall have become effective and Parent shall have purchased 100% of the Equity Interests of Borrower.
(e) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(f) The representations and warranties of Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Effective Date (before and after giving effect to any Credit Extension made or deemed made on the Effective Date); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further 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.
(g) No Default or Event of Default exists or would result from the Credit Extension made or deemed made on the Effective Date or from the application of the proceeds therefrom.
(h) The Lenders shall have received on or prior to the Effective Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
Amended and Restated Agreement This Agreement amends and restates, in its entirety, and replaces, the Prior Loan Agreement. This Agreement is not intended to, and does not, novate the Prior Loan Agreement and Borrower reaffirms that the existing security interest created by the Prior Loan Agreement is and remains in full force and effect.
Term and Effective Date The Master Contract became effective March 22, 2023, and its term currently ends on August 31, 2027. The Master Contract has five years of renewals available. The Contract will become effective on April 1, 2023, or on the date signed by all Parties, whichever is later. The Contract will expire on August 31, 2027, unless terminated earlier or renewed in accordance with Exhibit B, Special Contract Conditions.
Amendment and Restatement; No Novation (a) This Agreement constitutes an amendment and restatement of the Existing Credit Agreement effective from and after the Restatement Effective Date. The execution and delivery of this Agreement shall not constitute a novation of any Indebtedness or other Obligations owing to the Lenders or the Administrative Agent under the Existing Credit Agreement based on facts or events occurring or existing prior to the execution and delivery of this Agreement. On the Restatement Effective Date, the credit facilities described in the Existing Credit Agreement shall be amended, supplemented, modified and restated in their entirety by the facilities described herein, all loans and other obligations of the Borrower outstanding as of such date under the Existing Credit Agreement shall be deemed to be Loans and Obligations outstanding under the corresponding facilities described herein, without any further action by any Person, and participations in Letters of Credit and Swing Line Loans shall be deemed to be reallocated as are necessary in order that the outstanding balance of such participations, together with any Loans funded on the Restatement Effective Date, reflect the respective Commitments of the Lenders hereunder.
(b) In connection with the foregoing, by signing this Agreement, each Loan Party hereby confirms that notwithstanding the effectiveness of this Agreement and the transactions contemplated hereby (i) the Obligations of such Loan Party under this Agreement and the other Loan Documents are entitled to the benefits of the guarantees and the security interests set forth or created herein and in the Collateral Documents, (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as Guarantor with respect to all of the Guaranteed Obligations, (iii) each Loan Document to which such Loan Party is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects and shall remain in full force and effect according to its terms and (iv) such Loan Party ratifies and confirms that all Liens granted, conveyed, or assigned to any Agent by such Person pursuant to any Loan Document to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Obligations.
Effect of Amendment and Restatement It is the intent of the parties hereto that this Agreement shall, as of the date hereof, replace in its entirety the Original Trust Agreement; provided, however, that with respect to the period of time from January 20, 2021 through the date hereof, the rights and obligations of the parties shall be governed by the Original Trust Agreement; and provided further, that the amendment and restatement of the Original Trust Agreement shall not affect any of the grants, conveyances or transfers contemplated by the Original Trust Agreement to have occurred prior to the date hereof.
Conditions to Effectiveness of Extension Notwithstanding the foregoing, (x) no more than two (2) extensions of each Maturity Date shall be permitted hereunder and (y) any extension of any Maturity Date pursuant to this Section 2.25 shall not be effective with respect to any Extending Lender unless:
(i) no Default or Event of Default shall have occurred and be continuing on the applicable Extension Date and immediately after giving effect thereto;
(ii) the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects (or in all respects if such representation is qualified by materiality or Material Adverse Effect) on and as of the applicable Extension Date and after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(iii) the Administrative Agent shall have received a certificate from the Company signed by a Financial Officer of the Company (A) certifying the accuracy of the foregoing clauses (i) and (ii) and (B) certifying and attaching the resolutions, if any are otherwise required, adopted by each Borrower approving or consenting to such extension.
Conditions Precedent to Effective Date The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or PDFs (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower:
(i) executed counterparts of this Agreement satisfying the requirements of Section 11.10;
(ii) a customary certificate of the Secretary or Assistant Secretary of the Borrower attaching copies of its certificate of incorporation and by-laws as in effect on the Effective Date, a good standing certificate for it from the Secretary of State of the State of Delaware dated as of a recent date and resolutions of its Board of Directors authorizing execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; and
(iii) a customary incumbency certificate in respect of each of the officers of the Borrower who are authorized to sign this Agreement and the other Loan Documents on its behalf and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby.
(b) All fees required by the Loan Documents to be paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letters) by the Borrower, and all invoiced expenses (including Attorney Costs) required to be paid by the Borrower, to the Administrative Agent, the Arrangers or any Lender prior to the Effective Date shall have been paid, to the extent that such invoices have been presented to the Borrower at least two (2) Business Days prior to the Effective Date.
(c) The Arrangers shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, in each case that has been requested in writing prior to the Effective Date.
(d) The representations and warranties of the Borrower contained in ARTICLE V (other than Section 5.14) or any other Loan Document shall be true and correct on and as of the Effective Date and there shall be no Default hereunder, and the Borrower shall have delivered a certificate from a Responsible Officer certifying to the satisfaction of the condition precedent in this clause (d).
(e) The Borrower shall have received (x) a copy of the fully executed Purchase Agreement, (y) a copy of the Business Combination Agreement, and (z) a copy of the Offer Announcement, in each case, in form and substance satisfactory to the Lenders.
Amendment and Restatement On the Closing Date, this Agreement shall amend and restate and supersede the Existing Credit Agreement in its entirety. On the Closing Date, the rights and obligations of the parties evidenced by the Existing Credit Agreement shall be evidenced by this Agreement and the other Loan Documents as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the Closing Date. All principal, interest, fees and expenses, if any, owing or accruing under or in respect of the Existing Credit Agreement for periods prior to the Closing Date shall be calculated and paid on the Closing Date. Upon the effectiveness of this Agreement, each reference in the Loan Documents to “the Credit Agreement” or words of similar effect shall mean this Agreement. Each Loan Party (a) acknowledges and agrees that each Loan Document (as defined in the Existing Credit Agreement) and all other instruments and documents executed and delivered by such Loan Party in favor of the Administrative Agent or the Collateral Agent, as applicable, pursuant the Existing Credit Agreement, unless terminated or discharged prior to or on the Closing Date, shall remain in full force and effect on the Closing Date in accordance with its terms, in each case as amended, restated, amended and restated, supplemented or otherwise modified and/or reaffirmed pursuant to the terms of this Agreement and the other Credit Documents and (b) ratifies, reaffirms and confirms that, the Obligations that remain unpaid and outstanding as of the date of this Agreement after giving effect to the Transactions (x) continue outstanding under this Agreement and shall not be deemed to be paid, released, discharged or otherwise satisfied by the execution of this Agreement, and this Agreement shall not constitute a refinancing, substitution or novation of such Obligations or any of the other rights, duties and obligations of the parties hereunder, and the terms “Obligations” as such term is used in the Loan Documents shall include the Obligations as amended and restated under this Agreement, and (y) are secured pursuant to the Collateral Documents (as defined in the Existing Credit Agreement), unless terminated or discharged on the Closing Date, in each case as amended, restated, amended and restated, supplemented or otherwise modified and/or reaffirmed pursuant to the terms of this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, all security interests, pledges, assignments and other Liens and Guarantees previously granted by any Loan Party pursuant to the Loan Documents executed and delivered in connection with the Existing Credit Agreement are hereby reaffirmed, ratified, renewed and continued, and all such security interests, pledges, assignments and other Liens and Guarantees, in each case, unless expressly terminated, superseded or discharged on and after the Closing Date, shall remain in full force and effect as security for the Obligations (as defined in this Agreement) on and after the Closing Date.
Conditions to Effectiveness This Amendment shall become effective upon the date (the “First Amendment Effective Date”) on which the Administrative Agent shall have received:
(a) this Amendment, executed and delivered by a duly authorized officer of the Borrower;
(b) written consents to the execution of this Amendment (“Lender Consent Letters”) from Lenders constituting the Required Lenders;
(c) a Tranche C Lender Addendum executed and delivered by each Tranche C Term Loan Lender and accepted by the Borrower;
(d) an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party other than the Borrower (such Acknowledgements and Consents, together with this Amendment, the “Amendment Documents”);
(e) a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) of Lxxxxx & Wxxxxxx, counsel to the Borrower and its Subsidiaries, covering such matters relating to the Loan Parties, the Loan Documents and this Amendment as the Administrative Agent shall reasonably request;
(f) all fees required to be paid, and all reasonable out-of-pocket expenses of the Administrative Agent for which invoices have been presented (including reasonable fees, disbursements and other charges of counsel to the Agents), on or before the First Amendment Effective Date; and
(g) subject to Section 9 hereof, satisfactory evidence that the outstanding principal amount of, and all accrued and unpaid interest on, the Tranche B Term Loans shall have been paid in full (in the case of the principal amount thereof, with the proceeds of the Tranche C Term Loans). The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment shall not become effective unless each of the foregoing conditions is satisfied at or prior to 5:00 p.m., New York City time, on December 31, 2003.
