Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date): (i) executed counterparts of this Agreement, in the number requested by the Administrative Agent; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date; (iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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; (iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma; (v) [Reserved]; (vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers; (vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries; (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and (ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX. (i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower. (c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date). (d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 2 contracts
Samples: Credit Agreement (ONE Gas, Inc.), Credit Agreement (ONE Gas, Inc.)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon is subject to the satisfaction (or waiver in accordance with Section 10.01by the 2020 Incremental Revolving Facility Lenders) of the following conditions precedent set forth in this Section 4.01; provided that (the obligations date of such satisfaction or waiver, the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:“Agreement Effective Date”):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) from each 2020 Incremental Revolving Facility Lender and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a certificate of the following, Secretary or Assistant Secretary or similar officer of each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each Loan Party dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Agreement Effective Date)::
(i) executed counterparts attaching a copy of this Agreementthe certificate or articles of incorporation, in the number requested certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Administrative Agent;Secretary of State (or other similar official) of the jurisdiction of its organization,
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such other customary functionally equivalent certificatejurisdiction) of the Borrower such Loan Party as of a recent date from the such Secretary of State (or other applicable Governmental Authoritysimilar official),
(iii) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of Oklahoma;such Loan Party as in effect on the Agreement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party 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 Agreement Effective Date,
(v) [Reserved];certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(c) The Administrative Agent shall have received, on behalf of itself and the 2020 Incremental Revolving Facility Lenders, a favorable written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP (A) Skaddendated the Agreement Effective Date, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing 2020 Incremental Revolving Facility Lenders on the Agreement Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to this Agreement as the Arrangers;Administrative Agent shall reasonably request.
(viid) On the Agreement Effective Date, (i) the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Existing Credit Agreement shall be satisfied and (ii) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consentsBorrower, licenses and approvals required in connection dated the Agreement Effective Date, confirming compliance with the execution, delivery and performance by conditions set forth in the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or foregoing clause (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basisi) of the Borrower and its Subsidiaries;
this paragraph (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXd).
(ie) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as may be required by them in order to enable compliance with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent a Beneficial Ownership Certificate for the Borrower or any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing Regulation (at least ten (10) days three Business Days prior to the Closing Agreement Effective Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the each case of expenses, to the extent invoiced requested of the Borrower at least 10 Business Days prior to the Closing Agreement Effective Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.016, each 2020 Incremental Revolving Facility Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, with each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender the 2020 Incremental Revolving Facility Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such 2020 Incremental Revolving Facility Lender prior to the proposed Closing Agreement Effective Date specifying its objection thereto. The No representations or warranties under the Loan Documents will be deemed made on the Agreement Effective Date other than those referred to in paragraph (d) above. For the avoidance of doubt, the Borrower, the Administrative Agent shall notify the Lenders and the Borrower 2020 Incremental Revolving Facility Lenders acknowledge and agree that the Amendment Effective Date has occurred as of the Closing DateJuly 20, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time2020.
Appears in 2 contracts
Samples: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;Note; and
(iii) a certificate of a secretary such other assurances, certificates, documents, consents or assistant secretary of the Borrower (attaching resolutions, incumbency certificates opinions as the Administrative Agent may reasonably require and trueAgent, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect uponL/C Issuer, the operations, assets Swing Line Lender or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be Required Lenders reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXrequire.
(ib) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any All accrued fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have Arrangers and the Lenders required to be paid on or before the Effective Date (including all Attorney Costs (related to Xxxxxx reasonable fees and Xxxxx, LLP) expenses of counsel for the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, on or before such additional amounts of Attorney Costs as date) shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger)have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 2 contracts
Samples: Credit Agreement (Republic Services, Inc.), Credit Agreement (Republic Services Inc)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the Company, each dated the Closing Signing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Signing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note executed by the Borrower in favor such certificates of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of the Company as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which the Company is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Company is duly organized or formed, and that the Company is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have an Initial Funding Date Material Adverse Effect, which such jurisdictions are set forth on Schedule 4.01(a)(iii);
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable an opinion of (A) Skadden, Arps, Slate, Xxxxxxx Hunton & Xxxx Xxxxxxxx LLP, special counsel to the BorrowerCompany, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date Lender, in form and reasonably substance satisfactory to the Administrative Agent and the ArrangersRequired Lenders;
(viiv) a certificate an opinion of a Responsible Officer of Xxxxxx Xxxxxxxxxxxx, general counsel to the Borrower (A) either (x) attaching copies of all consentsCompany, licenses addressed to the Administrative Agent and approvals required each Lender, in connection with form and substance satisfactory to the execution, delivery and performance by the Borrower Administrative Agent and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its SubsidiariesRequired Lenders;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existssuch other assurances, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respectscertificates, except to the extent that such representations and warranties specifically refer to an earlier datedocuments, in which case they shall be true and correct in all material respects consents or opinions as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, howeverany L/C Issuer, that such delivery the Swing Line Lender or the Required Lenders reasonably may be completed by making such financial statements available on XXXXXrequire.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Signing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to without limitation, the Arrangers and the Administrative Agent Ticking Fee (as defined in the case of expensesCommitment Letter), to which such fee shall cease accruing after the extent invoiced prior to the Closing Signing Date).
(dc) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs (related actual and reasonable fees, charges and disbursements of counsel to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and (directly to such counsel if requested by the Left Lead Arranger Administrative Agent) to the extent invoiced prior to or on the Closing Signing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx such fees, charges and Xxxxx, LLP) disbursements incurred or to be incurred by it through the closing effectiveness proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent and the Left Lead ArrangerAgent).
(d) The Signing Date shall have occurred on or before February 26, 2010. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Signing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 2 contracts
Samples: Credit Agreement (Towers Watson & Co.), Credit Agreement (Towers Watson Delaware Inc.)
Conditions to Effectiveness of this Agreement. This Agreement shall be become effective on and as of the date hereof (the “Incremental Facility Closing Date”), upon satisfaction (or waiver in accordance with Section 10.01) of only the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02following conditions:
(a) The Administrative Agent’s receipt of Agent and the followingIncremental Term Lender shall have received from the Borrower, Holdings, each of which shall be originalsSubsidiary Guarantor, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent, the Collateral Agent and the Incremental Term Lender either (i) unless otherwise specifieda counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent and the Incremental Term Lender (which may include telecopy or other electronic transmission (including “pdf”) of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Incremental Term Lender shall have received, on behalf of such parties and the Lenders, an opinion of Xxxxxx & Bird LLP, as special counsel for the Loan Parties and Xxxx Plant Xxxxx, as Minnesota special counsel for the Loan Parties, each dated as of the Incremental Facility Closing Date and addressed to the Administrative Agent, the Incremental Term Lender and the Lenders, and of such other counsel to the Loan Parties satisfactory to the Administrative Agent and the Incremental Term Lender, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Incremental Term Lender.
(orc) The Administrative Agent shall have received: (i) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or similar Governmental Authority of the state of its incorporation or organization and (ii) an Officer’s Certificate of the Secretary or Assistant Secretary of each Loan Party dated the Incremental Facility Closing Date and certifying (A) that attached thereto are copies of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto are the true and complete copy of the bylaws or operating (or limited liability company) agreement of such Loan Party as in effect on the Incremental Facility Closing Date, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Governing Board of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of certificates the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (D) as to the incumbency and specimen signature of governmental officialseach officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(d) The Administrative Agent shall have received an Officer’s Certificate, dated the Incremental Facility Closing Date and signed by a recent date before Financial Officer of the Closing Date):
Borrower, certifying compliance with the conditions precedent set forth in Sections 3(f), (g), (i) executed counterparts of this Agreementand (j) hereof (and, in the number requested by case of clause (i), attaching calculations demonstrating such compliance).
(e) The Incremental Term Lender shall have received (i) all fees due and payable on the Administrative Agent;
Incremental Facility Closing Date pursuant to any agreement relating to the arrangement of the Incremental Term Loan Commitments and (ii) a Note executed by to the Borrower in favor of each Lender requesting a Note extent invoiced at least two Business Days prior to the Incremental Facility Closing Date;, all costs and expenses due and payable (whether pursuant to the Loan Documents or any agreement relating to the arrangement of the Incremental Term Loan Commitments) on or prior to the Incremental Facility Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out of pocket costs and expenses (including, without limitation, reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(iiif) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the The representations and warranties of the Borrower contained each Loan Party set forth in Article V are Section 5 of this Agreement and in each other Loan Document shall be true and correct in all material respectsrespects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier datedate or period, in which case they shall be true and correct in all material respects as of such earlier date or period; provided 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 the Incremental Facility Closing Date or on such earlier date, except that such materiality qualifier as the case may be.
(g) No Default or Event of Default shall not apply exist or would immediately result from the extension of the Incremental Term Loans or from the application of the proceeds therefrom.
(h) The Borrower shall have delivered or caused to be delivered to the extent that any such representation or warranty is qualified by materialityAdministrative Agent and the Incremental Term Lender a solvency certificate from the Chief Financial Officer of Holdings setting forth the conclusions that, and (C) that there has been no event or circumstance since after giving effect to the date of the Audited Financial Statements that has had or could be reasonably expected to havetransactions contemplated hereby, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower Holdings and its Subsidiaries taken as (on a whole; provided however (xconsolidated basis) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXare Solvent.
(i) To The incurrence of the Incremental Term Loans and the application of proceeds thereof (and assuming the Incremental Term Loans are fully drawn) complies with the requirements set forth in Section 2.22(a) of the Credit Agreement.
(j) The Borrower shall have given notice of the prepayment of the outstanding “Revolving Loans” under and as defined in the Revolving Credit Agreement in accordance with Section 2.12(b) of the Revolving Credit Agreement, and substantially contemporaneously with the funding of the Incremental Term Loans, shall have made such prepayment of such Revolving Loans.
(k) The Administrative Agent and the Incremental Term Lender shall have received prior to the Incremental Facility Closing Date, to the extent requested from the Borrower in writing by the Administrative Agent at least ten (10) days 2 Business Days prior to the Incremental Facility Closing Date, the Lenders shall have received such all documentation and other information as may be required by them in order to enable compliance with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the information required USA Patriot Act that has been requested by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days Administrative Agent prior to the Incremental Facility Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 2 contracts
Samples: Incremental Amendment (Forum Merger Corp), Incremental Amendment (Forum Merger Corp)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit Extensions hereunder are subject to satisfaction shall not become effective until the date on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:10.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the followingLoan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(b) The Administrative Agent shall have received, on behalf of itself, the other Agents, the Arrangers and the Lenders, a favorable written opinion of (i) Xxxxxx LLP, special counsel for the Loan Parties, and (ii) Xxxxxx and Calder, British Virgin Islands counsel to the Loan Parties, in each case, addressed to the Agents and the Lenders from time to time party thereto and in a form reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received a solvency certificate in the form of Exhibit K to this Agreement, dated the Closing Date and signed by the chief financial officer of Holdings.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent.
(e) There shall not be any investigation or review pending (or to the knowledge of Holdings, threatened) by any Governmental Authority with respect to Holdings or any of its Subsidiaries, that would reasonably be expected to have a Material Adverse Effect and there are no actions, suits, inquiries, investigations or proceedings pending (or to the knowledge of Holdings, threatened) against or affecting Holdings or any of its Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before any governmental entity, in each case that would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.
(g) The conditions set forth in Section 4.02(b) through 4.02(d) of this Agreement shall be satisfied on and as of the Closing Date with respect to the Credit Extensions to be made on the Closing Date by the Term A Lenders and the Term B Lenders.
(h) The Arrangers and Administrative Agent shall have received all Administrative Agent Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Xxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Agents), and the fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors required to be reimbursed or paid by Borrowers hereunder or under any other Loan Document.
(i) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral; provided that filings with the United States Patent and Trademark Office and United States Copyright Office and in any foreign jurisdictions, and delivery of Control Agreements shall not constitute a condition precedent to fund any Credit Extension.
(j) The Administrative Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of Rovi, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that any Liens not permitted under Section 6.02 have been or will be contemporaneously released or terminated.
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.04 and the applicable provisions of the Security Documents, each of which shall be originalsendorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Administrative Agent as additional insured, facsimiles or “pdf” electronic copies in form and substance satisfactory to the Administrative Agent.
(followed promptly by originals l) The Lenders shall have received the financial statements and report referred to in Section 3.04.
(m) The Lenders shall have received, to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or three (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such all documentation and other information as may be required by them in order to enable compliance with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the information required PATRIOT Act.
(n) The Borrowers shall have paid all fees due and payable on the Closing Date pursuant to the Amended and Restated Engagement Letter dated as of June 26, 2014 by and among the USA PATRIOT Act Borrowers and information described in Section 10.18the other parties thereto (as the same may be amended from time to time, in each case at least five (5) the “Engagement Letter”), and all expenses due and payable pursuant to the Engagement Letter to the extent invoiced not less than one Business Days Day prior to the Closing Date.
(o) The Borrowers shall have prepaid (or to have been deemed to have prepaid after giving effect to the Term Loans) all principal, premium, if any, interest, fees and other amounts due under the Predecessor Credit Agreement on the Closing Date by paying the principal amount to be prepaid together with interest accrued thereon to the date of such prepayment. The Borrowers will reimburse the lenders under the Predecessor Credit Agreement for any funding losses incurred pursuant to Section 2.13 of the Predecessor Credit Agreement.
(iip) at least five (5) Business Days prior to All guarantees and security in support of principal, premium, if any, interest, fees or other amounts due under the Predecessor Credit Agreement shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees discharged and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders released and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timereasonably satisfactory evidence thereof.
Appears in 2 contracts
Samples: Credit Agreement (TiVo Corp), Credit Agreement (Rovi Corp)
Conditions to Effectiveness of this Agreement. This Agreement shall be become effective upon satisfaction on and as of the date on which each of the following conditions precedent shall have been satisfied (or waiver waived in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly writing by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as the Lenders) (and the date on which all such conditions precedent have been satisfied or waived in writing by the Administrative Agent and the Lenders is called the “Effective Date”):
12.1.1 The Administrative Agent shall have executed a counterpart hereto and shall have received from (i) the Company and (ii) the Lenders either (A) a counterpart of the Closing Date and reasonably this Agreement signed on behalf of such party or (B) evidence satisfactory to the Administrative Agent and (which may include a facsimile transmission or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
12.1.2 The Administrative Agent shall have received (i) the Arrangers;
Company’s charter (viior similar formation document), certified by the appropriate governmental authority; (ii) a good standing certificate in the state of a Responsible Officer incorporation of the Borrower Company; (Aiii) either the Company’s bylaws; (xiv) attaching copies resolutions of all consents, licenses the Company’s board of directors approving and approvals required in connection with authorizing the Company’s execution, delivery and performance by the Borrower of this Agreement (and the validity against the Borrower of the any other Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document Documents to which it is a party); and (v) signature and incumbency certificates of the Company’s officers executing any of the Loan Documents, all certified by its secretary or an assistant secretary (3or similar officer) a material adverse as being in full force and effect upon without modification.
12.1.3 The Administrative Agent shall have received an opinion of counsel for the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 Company in form and substance reasonably satisfactory to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at 12.1.4 At least ten (10) days five Business Days prior to the Closing Effective Date, the Lenders shall have received such received, to the extent requested at least ten Business Days prior to the Effective Date, all documentation and other information as may be required by them in order to enable compliance with bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the information required by Patriot Act.
12.1.5 The Administrative Agent shall have received a solvency certificate, dated the USA PATRIOT Act Effective Date, from the chief financial officer of the Company substantially consistent with the form of Exhibit G hereto.
12.1.6 The Company shall have paid all accrued and information described in Section 10.18unpaid fees, in each case costs and expenses due to the Administrative Agent and the Lenders, to the extent invoiced with reasonable detail at least five (5) two Business Days prior to the Closing Date, Effective Date and (ii) at least five (5) Business Days due and payable on or prior to the Closing Effective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationincluding (i) upfront fees, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in for the case account of expenses, to each Lender on the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs Effective Date as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts previously agreed between the Borrower Company and the Administrative Agent and the Left Lead Arranger). Without limiting the generality (ii) all Attorney Costs of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent.
12.1.7 The Administrative Agent shall have received notice from such Lender prior to a certificate, dated the proposed Closing Effective Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower signed by a Senior Officer on behalf of the Closing DateCompany, certifying that the representations and such notice shall be binding warranties set forth in Section 9 hereof are true and conclusive. Notwithstanding the foregoing, the obligations correct as of the Lenders to make Loans Effective Date and no Event of the L/C Issuers to issue Letters Default or Unmatured Event of Credit hereunder Default shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, have then occurred and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timebe continuing.
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement and, if the Borrower shall have requested any Credit Extension be effective upon satisfaction (or waiver in accordance with Section 10.01) made on the Closing Date, the obligation of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders each Lender to make its initial Credit Extensions Extension hereunder on the Closing Date, if any, are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” facsimile or electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, in the number requested executed and delivered by the Administrative Agent, the Borrower and each Lender listed on Schedule 2.01;
(ii) a Term Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateTerm Note;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahomaextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [Reserved];
(vi) a favorable opinion opinions of (A) Skadden, Arps, Slate, Xxxxxxx Slate Mxxxxxx & Xxxx Fxxx LLP and Bxxxxxx Xxxxx LLP, special counsel counsels to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;Lender; and
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, the conditions specified in Sections 4.01(e) and (f) have been satisfied; (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, current Debt Ratings; and (C) that there has been no event or circumstance since that, as of the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or last financial condition statements of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed delivered pursuant to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect uponthe 2021 Credit Agreement, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, was in pro forma compliance (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse giving pro forma effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out ofTerm Loans, resulting from or attributable to any of if any, made on the foregoing, shall constitute or be taken into account Closing Date) with the financial covenants contained in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; andSection 7.10.
(ixb) the financial statements Any fees required to be delivered paid by the Borrower on or prior to the Closing Date pursuant to Section 6.01 the Loan Documents and all expenses required to be reimbursed by the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available Borrower on XXXXX.
(i) To the extent requested in writing at least ten (10) days or prior to the Closing Date, Date pursuant to the Lenders Loan Documents shall have received been paid; provided that invoices for such documentation expenses have been presented to the Borrower a reasonable period of time (and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five any event not less than one (51) Business Days Day) prior to the Closing DateDate (including, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing DateAgent, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx such fees, charges and Xxxxx, LLP) disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)).
(i) Upon the reasonable request of any Lender made in writing at least ten (10) Business Days prior to the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested by such Lender that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least five (5) Business Days prior to the Closing Date and (ii) at least five (5) Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall have delivered, to each Lender that so requests at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(d) The Administrative Agent’s receipt of an executed copy of a certificate signed by a Responsible Officer certifying the Borrower’s Sustainability Metric Components for the calendar year ended December 31, 2020 (solely for purposes of this Section 4.01(d), reflecting the Boundary Properties that the Borrower has owned and that were in service for the period of two (2) full consecutive calendar years ended December 31, 2020).
(e) The representations and warranties of the Borrower contained in Article V shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the Closing Date, except to the extent that any such representation or warranty specifically refers to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) as of such earlier date.
(f) No Default shall exist on the Closing Date, and, if the Borrower shall have requested any Credit Extension be made on such date, no Default would result from such proposed Credit Extension or from the application of the proceeds thereof.
(g) If any Credit Extension is to be made on the Closing Date, the Administrative Agent and shall have received a Request for Credit Extension in accordance with the Left Lead Arranger)requirements hereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and each other document to which it is a party or which it has reviewed and (ii) any other matter required under this Section 4.01 hereunder or thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received a written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the number requested by Administrative Agent, each Lender and the Borrower and if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and substance reasonably acceptable to the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certifications as the Administrative Agent may reasonably require to the good standing (evidence that each Loan Party is duly organized or such other customary functionally equivalent certificate) formed, and that each of the Borrower from and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the Secretary conduct of State (or other applicable Governmental Authority) of Oklahomaits business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [Reserved]a favorable opinion of Xxxxxxx Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vi) a favorable opinion of (A) SkaddenBaker, ArpsDonelson, SlateBearman, Xxxxxxx Xxxxxxxx & Xxxx LLPXxxxxxxxx, special local Alabama counsel to the BorrowerLoan Parties, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date Lender, in form and substance reasonably satisfactory to the Administrative Agent and the ArrangersLenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each Loan Party of the Loan DocumentsDocuments to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (yB) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) certifying that no Default existsthe conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (1C) certifying and attaching calculations which demonstrate that after giving effect to the Closing Date Acquisition and the acquisition consummated under the Agreement and Plan of Merger, dated as of January 7, 2013, among the Borrower, Echo Merger Sub, Inc., a material adverse change inDelaware corporation and wholly owned subsidiary of the Borrower, or and Epocrates, Inc., a material adverse effect uponDelaware corporation, pursuant to which, among other things, the operationsBorrower acquired all of the equity interests of Epocrates, assets Inc., on a pro forma basis (determined on the basis of the financial information for the most recently ended period of four fiscal quarters of the Borrower for which financial statements for the Borrower are available, as though each such event had occurred as of the first day of the fiscal period covered thereby) the Consolidated Senior Leverage Ratio is less than or financial condition of equal to 2.50 to 1.00;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) an environmental assessment report with respect to the Acquired Property, in scope and with results reasonably satisfactory to the Administrative Agent, from an environmental consulting firm acceptable to the Administrative Agent;
(xi) evidence that (A) the Existing Credit Agreement and all commitments thereunder have been or concurrently with the Closing Date are being terminated and (B) the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in have no material indebtedness other than indebtedness under the Loan Documents and of itself, be deemed to constitute or be taken into account in determining whether a other material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyIndebtedness set forth on Schedule 4.01; and
(ixxii) the financial statements required to be delivered by the Borrower on such other assurances, certificates, documents, consents or prior to the Closing Date pursuant to Section 6.01 to opinions as the Administrative Agent; provided, howeverthe L/C Issuer, that such delivery the Swing Line Lender or the Required Lenders reasonably may be completed by making such financial statements available on XXXXXrequire.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(dc) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related fees, charges and disbursements of counsel to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and (directly to such counsel if requested by the Left Lead Arranger Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx such fees, charges and Xxxxx, LLP) disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent shall have received evidence, reasonably satisfactory to the Administrative Agent, that the Closing Date Acquisition shall have been or, substantially contemporaneously with initial Credit Extensions under this Agreement, will be consummated strictly in accordance with the terms of the Purchase Agreement and the Left Lead Arranger)in compliance with all applicable requirements of Law. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The , and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender of (x) funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent, and direction by such Lender to the Administrative Agent shall notify (unless expressly revoked by written notice from such Lender received by the Lenders Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) to withdraw and release to the Borrower of on the Closing Date, and Date the applicable funds of such notice shall Lender to be binding and conclusive. Notwithstanding applied to the foregoing, the obligations funding of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived by such Lender in accordance with Section 10.01(a)2.02 upon the Administrative Agent’s determination (made in accordance with and subject to the terms of this Agreement) at or prior that it has received all items expressly required to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timebe delivered to it under this Section 4.01.
Appears in 1 contract
Samples: Credit Agreement (Athenahealth Inc)
Conditions to Effectiveness of this Agreement. This Agreement and the limited waiver contained herein shall be become effective upon satisfaction on the date (or waiver in accordance with Section 10.01the “Agreement Effective Date”) when each of the conditions precedent set forth in this Section 4.01; provided that below shall have been fulfilled to the obligations satisfaction of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which Agent shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed have received counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note duly executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary and delivered on behalf of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;Parties.
(ivb) Other than the Potential Financial Noncompliance Matters, no event shall have occurred and be continuing that constitutes an Event of Default, or that would constitute an Event of Default but for the requirement that notice be given or that a certificate as to the good standing (period of time elapse, or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;both.
(vc) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the All representations and warranties of the Borrower contained in Article V are true the Credit Agreement, and correct in all material respects, except to the extent that such representations and warranties specifically refer of each other Loan Party in each Loan Document to an earlier datewhich it is a party, in which case they shall be true and correct in all material respects at the Agreement Effective Date as if made on and as of such earlier dateAgreement Effective Date, except that such materiality qualifier shall not apply to the extent that (a) any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected relating to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or any financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings statements shall not, in and of itself, be deemed to constitute or be taken into account applicable to the financial statements most recently delivered to the Administrative Agent in determining whether a material adverse change in, or a material adverse effect upon, accordance with the operations, assets or financial condition provisions of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occurLoan Documents, (yb) each other representation or warranty expressly stated to be made as of the fact that the Borrower is unable to borrow in the commercial paper market Closing Date shall not, in and of itself, not be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken have been repeated as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and date other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to than the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required any representation or warranty relating to any financial statements shall be deemed to be paid qualified by the Borrower (whether in connection with existence of the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)Potential Financial Noncompliance Matters.
(d) Unless waived by the Administrative Agent, the The Borrower shall have paid delivered to the Administrative Agent (1) certified copies of evidence of all Attorney Costs corporate and company actions taken by the Borrower and the other Loan Parties to authorize the execution and delivery of this Agreement, (related 2) certified copies of any amendments to Xxxxxx the articles or certificate of incorporation, bylaws, partnership certificate or operating agreement of the Borrower and Xxxxxeach other Loan Party since the date of the Credit Agreement, LLP(3) a certificate of incumbency for the officers or other authorized agents or partners of the Borrower and each other Loan Party executing this Agreement and (4) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(e) All documents delivered pursuant to this Agreement must be of form and substance satisfactory to the Administrative Agent and the Left Lead Arranger its counsel, and all legal matters incident to this Agreement must be satisfactory to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeAgent’s counsel.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and each Borrower and (B) the Guaranties;
(ii) a Note executed by the Borrower each Borrower, as applicable in favor of each Lender requesting a Note Note, to the extent requested at least two 3 Business Days prior to the Closing Date;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx Meagher & Xxxx Flom LLP, special New York counsel to the Borrower, Loan Parties and (Bii) GableGotwalsBennett Jones LLP, special Canadian counsel to the Canadian Borrower, in each case addressed to the Administrative Agent and each Lender Lender, as of applicable, and such other matters concerning the Closing Date and reasonably satisfactory to the Administrative Agent Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the U.S. Borrower certifying (A) that no Default existsthe conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occurMaterial Adverse Effect, and (zC) neither the weather conditions during February 2021 and March 2021 in current Debt Ratings;
(vii) a copy of the territories where duly completed compliance certificate as of June 30, 2018, signed by a Responsible Officer of the U.S. Borrower and its Subsidiaries operate nor delivered in connection with the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyExisting Credit Agreement; and
(ixviii) evidence of termination of the financial statements required to be delivered by the Borrower on Commitments as defined in Existing Credit Agreement and repayment or prior to refinancing of all loans thereunder simultaneously with the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXDate.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulationsAML/KYC Laws, including the information required by the USA PATRIOT Act and information described in Section 10.18Act, in each case at least five (5) shall have been delivered 3 Business Days prior to the Closing Date, and (ii) at least five (5) Date to the extent requested by the Lenders not less than 7 Business Days prior to the Closing Date, to the extent the Date and (ii) a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Regulation shall have deliveredbeen delivered 3 Business Days prior to the Closing Date, to each Lender that so requests in writing at least ten (10) days not less than 7 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any All accrued but unpaid interest, facility fees, utilization fees, letter of credit fees, and other fees and expenses due and payable under the Existing Credit Agreement shall be paid on the Closing Date.
(d) Any fees required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(de) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent Agent; and provided further that, as used in this Section 6.01(e), “Attorney Costs” shall include (i) all fees, expenses and disbursements of only one law firm constituting U.S. counsel to the Left Lead Arranger)Administrative Agent, and (ii) all fees, expenses and disbursements of only one law firm constituting Canadian counsel to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each dated properly executed by a Responsible Officer of the Closing Date (or, signing Loan Party and each in form and substance reasonably satisfactory to the case of certificates of governmental officials, a recent date before the Closing Date):Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, in the number requested by Guaranty, the Administrative AgentFee Letter and the Engagement Letter;
(ii) (A) a Note executed copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Borrower in favor Secretary of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary State or assistant secretary similar Governmental Authority of the Borrower (attaching resolutionsjurisdiction of its organization, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificatewhere relevant) of the Borrower each Loan Party as of a recent date, from the such Secretary of State (or other applicable similar Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, Authority and (B) GableGotwalsa certificate of the Secretary or Assistant Secretary (or a director in lieu thereof) of each Loan Party, special dated the Effective Date and certifying (i) that attached thereto is a true and complete copy of the by-laws, memorandum and articles of association or operating (or limited liability company) agreement of such Loan Party as in effect on the Effective Date, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan 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, (iii) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of incorporation or organization furnished pursuant to clause (A) above, and (iv) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary or director of such Loan Party executing the certificate pursuant to clause (B) above.
(iii) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the BorrowerLoan Parties, substantially in each case addressed to the Administrative Agent and each Lender as form of the Closing Date and reasonably satisfactory to the Administrative Agent and the ArrangersExhibit D;
(viiiv) a Solvency Certificate attesting to the Solvency of the Borrower and its Restricted Subsidiaries (taken as a whole) on the Effective Date after giving effect to the Target Transactions as if the Target Transactions were consummated on the Effective Date, from the chief financial officer of the Borrower; provided that any representation or warranty made in respect of the Solvency of the Target Group is qualified by and made subject to the actual knowledge and belief of the chief financial officer (which shall not include the knowledge or belief of any member of the Target Group or its management); and
(v) a certificate of a Responsible Officer of the Borrower certifying that (A) either (x) attaching copies no Default or Event of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower Default as of the Loan DocumentsEffective Date has occurred and is continuing, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respectsrespects on and as of the Effective Date as if made on and as of such date; provided, except however, that any representation and warranty that is qualified as to the extent that such representations and warranties specifically refer to an earlier date, in which case they “materiality” or “Material Adverse Effect” shall be true and correct in all material respects as of on such earlier date.
(b) The Administrative Agent shall have reviewed, except that such materiality qualifier shall not apply and be satisfied with, the final structure, terms and conditions and the documentation relating to the extent Target Acquisition, being the Press Release or Offer Press Release (as applicable), (it being understood that any such representation the Arrangers are satisfied with the drafts of the Press Release or warranty is qualified Offer Press Release (as applicable) and the disclosure schedules and exhibits received by materiality, and (C) that there has been no event or circumstance since the Arrangers on the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; andhereof).
(ixc) the financial statements required to be delivered by the Borrower on or The Administrative Agent shall have received at least 3 Business Days prior to the Closing Effective Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such all documentation and other information as may be required by them in order to enable compliance with bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case that has been reasonably requested at least five (5) 10 Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) advance of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Effective Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Senior Unsecured Bridge Credit Agreement (Polymer Group Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (The obligation of the Lender to make the Term Loans hereunder is subject to satisfaction, or waiver in accordance with Section 10.01) , of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt Lender shall have received each of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specifiedoriginals), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):), each in form and substance satisfactory to the Lender and in such number of originals or copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Tranche A Term Note duly executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateLender, if requested by the Lender;
(iii) a certificate Tranche B Term Note duly executed by the Borrower in favor of a secretary the Lender, if requested by the Lender;
(iv) such duly executed certificates of resolutions or assistant secretary consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent Lender may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as Documents to the good standing (or such other customary functionally equivalent certificate) of which the Borrower from the Secretary of State (is a party or other applicable Governmental Authority) of Oklahomais to be a party;
(v) [Reserved]such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing and qualified to engage in business in its jurisdiction of incorporation and each other jurisdiction in which it conducts business, except where the failure to be so qualified could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as Lender, in substantially the form of the Closing Date and reasonably satisfactory to the Administrative Agent and the ArrangersExhibit G;
(vii) a certificate of a Responsible Officer the chief executive officer, chief financial officer or an executive vice president of the Borrower either (A) either (x) attaching copies of all governmental, shareholder and third-party consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such governmental, shareholder and third-party consents, licenses and approvals shall be in full force and effect, or (yB) stating that no such governmental, shareholder or third-party consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer the chief executive officer, chief financial officer or an executive vice president of the Borrower certifying (A) that the conditions specified in Sections 4.01(h) and (i) have been satisfied and (B) that since March 31, 2008 no Default existsMaterial Adverse Effect has occurred;
(ix) a certificate attesting to the Solvency of the Borrower, individually and together with its Subsidiaries, before and after giving effect to the Transaction (including the Term Loans made or to be made and other obligations incurred or to be incurred on the Closing Date), from the chief executive officer, chief financial officer or an executive vice president of the Borrower, substantially in the form of Exhibit E hereto;
(x) duly executed counterparts of the letter agreement by and between Borrower and Lender substantially in the form of Exhibit F hereto, dated as of the date hereof (the “Letter Agreement”), by which the Borrower and Lender agree (A) to mutually terminate the Commitment Letter dated June 3, 2009 between the Borrower and Lender and the Commitment Letter dated June 17, 2009 between the Borrower and Lender concurrently with the funding of the Term Loans and (B) that the representations Lender will have no obligations to make any loans under such Commitment Letters from the date of this Agreement through the earlier of the termination of this Agreement pursuant to its terms and date of the funding of the Term Loans.
(xi) a certified copy of the agreement between the Borrower and Xxxxxxxxxx Multi-Strategy Master Fund, a Cayman Islands partnership trust, for the purchase by the Borrower of Subordinated Notes, together with all agreements, instruments and other documents delivered in connection therewith as the Lender shall request; and
(xii) such other assurances, certificates, documents, information or consents as the Lender may reasonably require.
(b) [Reserved];
(c) The Closing Date shall have occurred prior to January 31, 2010.
(d) [Reserved];
(e) All governmental, shareholder and third-party approvals and consents which the Lender determines in its discretion to be necessary, desirable or advisable, in connection with the Transactions or the other transactions contemplated hereby shall have been received on terms and in a form satisfactory to the Lender and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken by any applicable authority.
(f) There shall not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority (i) challenging or seeking damages or other relief in connection with any of the Transactions or the other transactions contemplated hereby, (ii) seeking to enjoin or prevent any of the Transactions or the other transactions contemplated hereby, (iii) that, in the opinion of the Lender, would otherwise materially and adversely affect any of the Transactions or the other transactions contemplated hereby or (iv) that has or could have a Material Adverse Effect on the Borrower or its Subsidiaries or any of the Transactions or the other transactions contemplated hereby.
(g) The Lender shall have received, at least five 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 without limitation the Patriot Act.
(h) The representations, warranties and certifications of or on behalf of the Borrower contained in Article V or any other Loan Document, or which are contained in any certificate or other document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date (in all material respectseach case both before and after giving effect thereto), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that such materiality qualifier shall not apply to for purposes of this Section 4.01, the extent that any such representation or warranty is qualified by materiality, representations and warranties contained in Sections 5.05(a) and (Cb) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, refer to the extent arising out of, resulting from or attributable most recent statements furnished pursuant to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2Sections 6.01(a) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXb).
(i) To No Default or Event of Default has occurred and is continuing, or would result from the extent requested making of either Term Loan or from the application of the proceeds therefrom.
(j) The OEM Agreement shall remain in writing at least ten full force and effect.
(10k) days The Warrant Agreement shall remain in full force and effect.
(l) The Letter Agreement shall remain in full force and effect.
(m) The Lender shall have received a Borrowing Notice upon not less than three Business Days prior to written notice of the Closing Date, the Lenders .
(n) The Lender shall have received such documentation and other information approvals, opinions or documents as the Lender may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrowerreasonably request.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and each Borrower and (B) the Guaranties;
(ii) a Note executed by the Borrower each Borrower, as applicable in favor of each Lender requesting a Note Note, to the extent requested at least two 3 Business Days prior to the Closing Date;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx Meagher & Xxxx Flom LLP, special New York counsel to the Borrower, Loan Parties and (Bii) GableGotwalsBennett Jones LLP, special Canadian counsel to the Canadian Borrower, in each case addressed to the Administrative Agent and each Lender Lender, as of applicable, and such other matters concerning the Closing Date and reasonably satisfactory to the Administrative Agent Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the U.S. Borrower certifying (A) that no Default existsthe conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occurMaterial Adverse Effect, and (zC) neither the weather conditions during February 2021 and March 2021 in current Debt Ratings;
(vii) a copy of the territories where duly completed compliance certificate as of June 30, 2018, signed by a Responsible Officer of the U.S. Borrower and its Subsidiaries operate nor delivered in connection with the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyExisting Credit Agreement; and
(ixviii) evidence of termination of the financial statements required to be delivered by Commitments as defined in the Borrower on Existing Credit Agreement and repayment or prior to refinancing of all loans thereunder simultaneously with the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXDate.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulationsAML/KYC Laws, including the information required by the USA PATRIOT Act and information described in Section 10.18Act, in each case at least five (5) shall have been delivered 3 Business Days prior to the Closing Date, and (ii) at least five (5) Date to the extent requested by the Lenders not less than 7 Business Days prior to the Closing Date, to the extent the Date and (ii) a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Regulation shall have deliveredbeen delivered 3 Business Days prior to the Closing Date, to each Lender that so requests in writing at least ten (10) days not less than 7 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any All accrued but unpaid interest, facility fees, utilization fees, letter of credit fees, and other fees and expenses due and payable under the Existing Credit Agreement shall be paid on the Closing Date.
(d) Any fees required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(de) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent Agent; and provided further that, as used in this Section 6.01(e), “Attorney Costs” shall include (i) all fees, expenses and disbursements of only one law firm constituting U.S. counsel to the Left Lead Arranger)Administrative Agent, and (ii) all fees, expenses and disbursements of only one law firm constituting Canadian counsel to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Notwithstanding anything to the contrary set forth herein, this Agreement shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and manner reasonably satisfactory to the Administrative Agent of each of the following conditions:
(a) the delivery to the Administrative Agent of this Agreement executed by each Credit Party, the Administrative Agent and the ArrangersRequisite Lenders;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (yb) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 delivery to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To Agent of a copy of the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Datefully executed Corresponding First Lien Amendment, and evidence that all conditions contained therein (iiother than the effectiveness of this Agreement) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.been satisfied;
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03in immediately available Dollars, for purposes the benefit of determining compliance with the conditions specified in this Section 4.01, each Lender that who has signed delivered an executed signature page to this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at on or prior to 5:00 p.m.P.M., New York City time, on April 15March 5, 2021, and in the event such conditions are not so satisfied or waived2010 (collectively, the Commitments “Signing Lenders”), a non-refundable fee in an aggregate amount equal to .03% of each such Signing Lender’s Loan Exposure as of the Third Amendment Effective Date, which fee shall terminate at such timebe non-refundable for any reason and fully earned and payable as of the date hereof;
(d) the Borrower shall have paid all fees then due and payable to the Administrative Agent pursuant to the Credit Documents and, to the extent invoiced by the Administrative Agent not less than two (2) Business Days prior to the Third Amendment Effective Date, shall have reimbursed the Administrative Agent for all reasonable costs and expenses incurred by the Administrative Agent in connection with this Agreement, including, without limitation, the preparation, negotiation and execution of this Agreement (including reasonable attorney’s fees of counsel to the Administrative Agent);
(e) the accuracy of the representations and warranties contained in Section 4 hereof; and
(f) no Default or Event of Default under the Credit Agreement shall have occurred and be continuing.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (X Rite Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) [Reserved];
(iii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iiiiv) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(ivv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(vvi) [Reserved];
(vivii) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the ArrangersArranger;
(viiviii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ixx) The Borrower shall have delivered the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, Date the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days to the extent requested in writing prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Daterequests, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers Arranger and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)Agent.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15February 22, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (ONE Gas, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective as of April 7, 2006 (the “Effective Date”) upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by the Borrower each Borrower, as applicable in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx Mxxxxxx & Xxxx Fxxx LLP, special counsel to the BorrowerLoan Parties, (ii) Bxxxxxx Xxxxx LLP, counsel to the Canadian Borrowers, and (Biii) GableGotwalsSxxxxxx XxXxxxxx Stirling Scales, special counsel to the BorrowerCanadian Borrowers and Devon Financing ULC, in each case addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent matters set forth in Exhibit H, as applicable, and such other matters concerning the Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that no Default existsthe conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (yC) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partycurrent Debt Ratings; and
(ixvii) a duly completed Compliance Certificate as of December 31, 2005, signed by a Responsible Officer of the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXUS Borrower.
(ib) To the extent requested in writing at least ten (10) days prior to the Closing DateAll accrued but unpaid interest, the Lenders shall have received such documentation facility fees, utilization fees, letter of credit fees, and other information as may be required by them in order to enable compliance with applicable “know your customer” fees and anti-money laundering rules expenses due and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” payable under the Beneficial Ownership Regulation, Existing Credit Agreement shall be paid on the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Effective Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Effective Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Effective Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent Agent; and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03provided further that, for purposes of determining compliance with the conditions specified as used in this Section 4.016.01(d), each Lender that has signed this Agreement “Attorney Costs” shall be deemed include (i) all fees, expenses and disbursements of only one law firm constituting U.S. counsel to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing DateAgent, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.and
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) as of the date (the “Effective Date”) on which each of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (shall have been satisfied or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02duly waived:
(a) The the Administrative Agent’s receipt of the followingAgent shall have received evidence, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals in form and substance satisfactory to the extent requested by the Administrative Agent) unless otherwise specified, each dated that as of the Closing Date (ordate hereof, the aggregate principal amount of the Obligations and the Senior Note Obligations does not exceed $98,000,000, in the case of certificates of governmental officials, a recent date before the Closing Date):aggregate;
(ib) the Administrative Agent shall have received evidence, in form and substance satisfactory to the Administrative Agent, that the Senior Noteholders have received a principal payment with respect to the Senior Notes Obligations in an amount equal to $3,552,767.33, which shall not be required to be shared with the Banks under the Intercreditor Agreement or Section 10.19 of the Credit Agreement;
(c) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, duly executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by Agreement from the Borrower in favor of each Lender requesting a Note at least two Business Days prior to and the Closing Majority Banks on or before the Effective Date;
(iiid) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require shall have received on or before the Effective Date the Senior Note Amendment in form and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably substance satisfactory to the Administrative Agent and the ArrangersMajority Banks;
(viie) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of shall have paid all consentsreasonable and documented fees, licenses costs and approvals required expenses incurred in connection with this Agreement and any other Loan Documents that have been invoiced and are required to be paid hereunder or under the executionCredit Agreement (including, delivery without limitation, legal fees and performance expenses) and that have been presented to the Borrower prior to the Effective Date;
(f) No injunction, writ, restraining order or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any Governmental Authority against the Borrower or NCB Capital; and
(g) The representations and warranties made or deemed made by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they under this Agreement shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXrespects.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (National Consumer Cooperative Bank /Dc/)
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) as of the conditions precedent set forth in this Section 4.01; provided that Closing Date upon the obligations satisfaction of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Devon Financing ULC Guaranty, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower Borrower, as applicable in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx Mxxxxxx & Xxxx Fxxx LLP, special counsel to the Borrower, Loan Parties and (Bii) GableGotwalsSxxxxxx XxXxxxxx Stirling Sxxxxx, special counsel to the BorrowerDevon Financing ULC, in each case addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent matters set forth in Exhibit F, as applicable, and such other matters concerning the Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe conditions specified in Sections 5.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (yC) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partycurrent Debt Ratings; and
(ixvii) the financial statements required to be delivered a duly completed Compliance Certificate as of March 31, 2007, signed by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to Responsible Officer of the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).. [Devon Credit Agreement]
(dc) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent Agent; and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03provided further that, for purposes of determining compliance with the conditions specified as used in this Section 4.015.01(c), each Lender that has signed this Agreement “Attorney Costs” shall be deemed include (i) all fees, expenses and disbursements of only one law firm constituting counsel to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeAgent.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement shall be Agreement, the obligation of each New Revolving Credit Lender to make its respective Commitment hereunder, and the obligation of each First Amendment Term Lender to provide First Amendment Replacement Term Loans, will become effective upon satisfaction on the date (or waiver in accordance with Section 10.01the “Amendment Effective Date”) on which each of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, immediately prior to or concurrently with the Amendment Effective Date, a counterpart of this Agreement, executed and delivered by a duly Authorized Officer of the Borrower, Holdings, the other Guarantors, the Required Lenders, all First Amendment Term Lenders, each New Revolving Loan Lender and each existing Revolving Loan Lender.
(b) The Administrative Agent (or its counsel) shall have received the executed legal opinions, in customary form, of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York, Delaware and California counsel to the Credit Parties and (ii) McGuireWoods LLP, special Virginia counsel to the Credit Parties. Holdings and the Borrower hereby instruct and agree to instruct the other Credit Parties to have such counsel deliver such legal opinions.
(c) The Administrative Agent shall have received each of the following, each properly executed by an authorized officer of the applicable signing Credit Party, dated as of the Amendment Effective Date:
(i) a certificate of each Credit Party with appropriate insertions, executed by two Authorized Officers (which shall be originalsfor this purpose may include one of the Secretary or Assistant Secretary) of each such Credit Party and attaching the following documents:
(A) a copy of the resolutions, facsimiles or “pdf” electronic copies (followed promptly by originals in form and substance reasonably satisfactory to the extent requested by the Administrative Agent, of the board of directors, general partner or other managers of each Credit Party (or a duly authorized committee thereof) unless otherwise specifiedauthorizing, each dated among other matters, (A) the Closing Date execution, delivery and performance of this Agreement and the other documents required to be delivered hereunder and (or, B) in the case of the Borrower, the extensions of credit contemplated hereunder;
(B) the Certificate or Articles of Incorporation and By-Laws, Certificate of Formation and Operating Agreement, Certificate of Limited Partnership and Partnership Agreement or other comparable organizational documents, as applicable, of each Credit Party;
(C) a certificate of good standing from the applicable secretary of state of the state of incorporation or formation of each Credit Party; and
(D) the signatures and incumbency certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts Authorized Officers of each Certificate Party executing this Agreement, in Joinder Agreement and/or the number requested by the Administrative Agentother documents required to be delivered hereunder;
(ii) a Note certificate executed by an Authorized Officer of the Borrower in favor certifying that (i) no Event of each Lender requesting a Note at least two Business Days prior Default exists on the date hereof before or after giving effect to the Closing Datetransactions contemplated hereby, including the establishment of the New Revolving Credit Commitments and the making of the First Amendment Replacement Term Loans, and (ii) as to the matters set forth in Section 5(d) of this Agreement;
(iii) a solvency certificate of certified by a secretary or assistant secretary senior authorized financial officer of the Borrower (attaching resolutionsto the effect that after giving effect to the consummation of the transactions contemplated by this Agreement, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as Borrower on a Responsible Officer in connection consolidated basis with this Agreement and the other Loan Documents;its Restricted Subsidiaries is Solvent; and
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) Notice of Borrowing in accordance with Section 7.2 of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, Credit Agreement completed and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible signed by an Authorized Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;Borrower
(viiid) a certificate signed by a Responsible Officer of the Borrower certifying The Amendment Arrangers shall have received all fees and other amounts (Aincluding legal fees and expenses) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true other compensation due and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower payable on or prior to the Closing Amendment Effective Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXextent invoiced at least three (3) Business Days prior to the Amendment Effective Date.
(ie) To The Borrower shall have, concurrently with the extent exchange of Exchanged Term Loans with the Replacement Term Loans and the making of the Additional Term Loans, if any, paid to all Term Lenders holding Existing Initial Term Loans immediately prior to the Amendment Effective Date that are not party to this Agreement, if any, all indemnities, cost reimbursements and other Obligations, if any, then due and owing to such Term Lenders under the Credit Documents (prior to the effectiveness of this Agreement) and of which the Borrower has been notified.
(f) The Administrative Agent and the Amendment Arrangers shall have received at least three Business Days prior to the Amendment Effective Date such documentation and information as is reasonably requested in writing at least ten (10) calendar days prior to the Closing Date, Amendment Effective Date by the Lenders shall have received such documentation and other information as may be Administrative Agent or the Amendment Arrangers about the Credit Parties to the extent required by them in order to enable compliance with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18including, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationwithout limitation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the BorrowerPATRIOT Act.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: First Amendment and Second Joinder Agreement (PRA Health Sciences, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) on the first day on which the Funding Agent, on behalf of the conditions precedent set forth Purchaser and the APA Banks, shall have received the following documents and instruments, all of which shall be in this Section 4.01; provided that form and substance acceptable to the obligations of Funding Agent (such day, the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:"Effective Date"):
(a) The Administrative Agent’s receipt A Certificate of the followingSecretary of each of the Transferor and NFC in such form as the Funding Agent may reasonably request.
(b) An incumbency and authorization certificate of each of the Transferor and NFC in such form as the Funding Agent may reasonably request.
(c) Executed copies of proper financing statements (Form UCC-1), each dated a date reasonably near to the date hereof naming the Transferor as the transferor (debtor) of the Receivables and the Funding Agent as transferee (secured party) or other similar instruments or documents as may be necessary or in the opinion of the Funding Agent desirable under the UCC or any comparable law to perfect the Owners' interest in the Transferred Interest.
(d) Executed copies of proper financing statements (Form UCC-1), dated a date reasonably near to the date hereof, naming NFC as the transferor (debtor) of the Receivables and the Transferor as transferee (secured party) or other similar instruments or documents as may be necessary or in the opinion of the Funding Agent desirable under the UCC or other comparable law to perfect the Transferor's interest in the Receivables.
(e) Executed copies of proper financing statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person in the Receivables and Related Security previously granted by the Transferor.
(f) Certified copies of request for information or copies (Form UCC-11) (or a similar search report certified by parties acceptable to the Funding Agent) dated a date reasonably near the date hereof listing all effective financing statements which name the Transferor or NFC (under its present name or any previous name) as transferor or debtor and which are filed in jurisdictions in which the filings were made pursuant to item (c) or (d) above together with copies of such financing statements (none of which shall be originalscover any Receivables or Related Security).
(g) Favorable opinions of Kirkland & Ellis, facsimiles or “pdf” electronic copies (followed promptly by originals special counsel for the Transferor and NFC, addressed to the extent requested by Transferor, NFC, the Administrative Agent) unless otherwise specifiedPurchaser, each dated the Closing Date (orAPA Banks axx xxx Xundxxx Xgent as to true sale, substantive consolidation, perfection and tax matters, in form and substance reasonably acceptable to the case of certificates of governmental officials, a recent date before the Closing Date):Funding Agent.
(ih) executed counterparts A favorable opinion of this AgreementWilliam W. Jones, in General Counsel for the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior Transferor and NFC, addressed to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of Purchaser, the Borrower (attaching resolutionsAPA Banks and the Funding Agent, incumbency certificates xx xx xxxx xxxxers as the Administrative Funding Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXrequest.
(i) To The Tranche Selection Notice for the extent requested in writing at least ten initial Transfer hereunder.
(10j) days prior to An executed copy of the Closing Date, Custodian Agreement and the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulationsPurchase Agreement, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the BorrowerSchedule of Receivables.
(ck) Any fees and expenses required An executed copy of the Fee Letter, together with receipt of the upfront fee referred to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)therein.
(dl) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs A copy of each executed Interest Rate Cap.
(related to Xxxxxx and Xxxxx, LLPm) Evidence of the Administrative Agent establishment of the Collection Account and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Reserve Account and the Administrative Agent and deposit into the Left Lead Arranger). Without limiting the generality Reserve Account of the provisions of Initial Reserve Account Deposit.
(n) Such other documents as the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Funding Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timemay reasonably request.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Navistar Financial Retail Receivables Corporation)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) [Reserved];
(iii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iiiiv) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(ivv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(vvi) [Reserved];
(vivii) a favorable opinion of (A) SkaddenGableGotwals, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and Date, reasonably satisfactory to the Administrative Agent and the Arrangers;
(viiviii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in“materially adverse”, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in“materially adverse”, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ixx) The Borrower shall have delivered the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the The Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) two Business Days prior to the Closing Date, Date and (ii) at least five (5) two Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Daterequests, a Beneficial Ownership Certification in relation to the such Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)Agent.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 20212020, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (ONE Gas, Inc.)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certifications as the Administrative Agent may reasonably require to the good standing (evidence that each Loan Party is duly organized or such other customary functionally equivalent certificate) formed, and that each of the Borrower from and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the Secretary conduct of State its business requires such qualification, except to the extent that failure to do so would not (either individually or other applicable Governmental Authorityin the aggregate) of Oklahomareasonably be expected to have a Material Adverse Effect;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx Procter LLP, special counsel to the BorrowerLoan Parties, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date Lender, in form and substance reasonably satisfactory to the Administrative Agent and the ArrangersLenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) either (x) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each Loan Party of the Loan DocumentsDocuments to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (yB) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) certifying that no Default existsthe conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would (either individually or in the aggregate) be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(1viii) a material adverse change in, or a material adverse effect upon, evidence that all insurance required to be maintained pursuant to the operations, assets or financial condition of Loan Documents has been obtained and is in effect;
(ix) evidence that the Borrower and its Subsidiaries taken as a whole; provided however have no material indebtedness other than indebtedness under the Loan Documents and other material Indebtedness set forth on Schedule 4.01;
(x) a downgrade by S&P or Xxxxx’x All accrued interest, fees and other charges to the Closing Date under the Existing Credit Agreement shall have been paid to the Administrative Agent for the account of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect uponthe lenders, the operations, assets or financial condition of l/c issuer and the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyswing line lender thereunder; and
(ixxi) the financial statements required to be delivered by the Borrower on such other assurances, certificates, documents, consents or prior to the Closing Date pursuant to Section 6.01 to opinions as the Administrative Agent; provided, howeverthe L/C Issuers, that such delivery the Swing Line Lender or the Required Lenders reasonably may be completed by making such financial statements available on XXXXXrequire.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(dc) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related fees, charges and disbursements of counsel to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and (directly to such counsel if requested by the Left Lead Arranger Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx such fees, charges and Xxxxx, LLP) disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead ArrangerAgent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (Athenahealth Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the The obligations of the Lenders to make Credit Extensions Loans hereunder are subject to satisfaction shall not become effective until the date on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:10.02):
(a) The Administrative Agent’s receipt Agent and the Lenders (or their respective counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent at the direction of the followingRequired Lenders (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other legal opinion, certificates, documents, instruments and agreements as the Lenders shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Lenders and their respective counsel.
(b) The Administrative Agent and the Lenders (or their respective counsel) shall have received, on behalf of itself, the other Agents and the Lenders, a favorable written opinion of Xxxxx Xxxxx L.L.P., special counsel for the Loan Parties, addressed to the Agents and the Lenders from time to time party thereto and in a form reasonably satisfactory to the Lenders.
(c) The Lenders (or their respective counsel) shall have received a solvency certificate in the form of Exhibit J to this Agreement, dated the Closing Date and signed by the chief financial officer of Holdings.
(d) The Lenders (or their respective counsel) shall have received such documents and certificates as the Lenders or their respective counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Lenders.
(e) There shall not be any investigation or review pending (or to the knowledge of Holdings, threatened) by any Governmental Authority with respect to Holdings or any of its Subsidiaries, that could reasonably be expected to have a Material Adverse Effect and there are no actions, suits, inquiries, investigations or proceedings pending (or to the knowledge of Holdings, threatened) against or affecting Holdings or any of its Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before any governmental entity, in each case that could reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any event, development or circumstance since January 1, 2015 that has had or could reasonably be expected to have a Material Adverse Effect.
(g) [Reserved].
(h) The Administrative Agent shall have received (i) a fully executed copy of the Fee Letter and (ii) all Administrative Agent Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the fees and expenses of Ropes & Xxxx LLP), and the fees and expenses of any counsel, local counsel, foreign counsel, appraisers, consultants and other advisors required to be reimbursed or paid by Borrower hereunder or under any other Loan Document or the Backstop Agreement (including the fees and expenses of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP and Opportune LLP).
(i) Subject to Section 5.17, the Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. Subject to Section 5.17, the Collateral and Guarantee Requirement shall have been satisfied substantially simultaneously with the initial Credit Extensions to be made on the Closing Date.
(j) The Lenders (or their respective counsel) shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Lenders that any Liens not permitted under Section 6.02 have been or will be contemporaneously released or terminated.
(k) The Administrative Agent and the Lenders (or their respective counsel) shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.04 and the applicable provisions of the Security Documents, each of which shall be originalsendorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Administrative Agent as additional insured, facsimiles or “pdf” electronic copies in form and substance satisfactory to the Lenders.
(followed promptly by originals l) The Lenders shall have received the financial statements and report referred to in Section 3.04.
(m) The Lenders shall have received, to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two three (3) Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the information required by PATRIOT Act.
(n) All principal, premium, if any, interest, fees and other amounts due under the USA PATRIOT Act and information described in Section 10.18Predecessor Credit Agreement shall have been or will be, in each case at least five (5) Business Days prior to substantially simultaneously with the initial funding of the Loans on the Closing Date, discharged, satisfied and terminated (iiprovided, that certain amounts due under the Predecessor Credit Agreement may be deemed Indebtedness hereunder) at least five (5) Business Days prior to and the Lenders shall have received reasonably satisfactory evidence thereof. All guarantees and security in support of principal, premium, if any, interest, fees or other amounts due under the Predecessor Credit Agreement shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, to discharged and released and the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Lenders shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees received reasonably satisfactory evidence thereof. It is understood and expenses required to be paid acknowledged by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to Lenders that the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as Confirmation Order shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in satisfy this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a4.01(n)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Global Geophysical Services Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (The obligation of the Lender to make the Term Loan hereunder is subject to satisfaction, or waiver in accordance with Section 10.01) , of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt Lender shall have received each of the following, each of which shall be originals, facsimiles originals or “pdf” electronic copies telecopies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specifiedoriginals), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):), each in form and substance satisfactory to the Lender and in such number of originals or copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Term Note duly executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateLender, if requested by the Lender;
(iii) a certificate such duly executed certificates of a secretary resolutions or assistant secretary consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent Lender may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which the Borrower is a party or is to be a party;
(iv) a certificate such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing (and qualified to engage in business in its jurisdiction of incorporation and each other jurisdiction in which it conducts business, except where the failure to be so qualified could not, individually or such other customary functionally equivalent certificate) of in the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahomaaggregate, reasonably be expected to have a Material Adverse Effect;
(v) [Reserved]a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Borrower, addressed to the Lender, in substantially the form of Exhibit E;
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as certificate of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer chief executive officer, chief financial officer or an executive vice president of the Borrower either (A) either (x) attaching copies of all governmental, shareholder and third-party consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such governmental, shareholder and third-party consents, licenses and approvals shall be in full force and effect, or (yB) stating that no such governmental, shareholder or third-party consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivii) a certificate signed by a Responsible Officer the chief executive officer, chief financial officer or an executive vice president of the Borrower certifying (A) that no Default exists, the conditions specified in Sections 4.01(h) and (i) have been satisfied and (B) that since March 31, 2008 no Material Adverse Effect has occurred;
(viii) a certificate attesting to the representations Solvency of the Borrower, individually and together with its Subsidiaries, before and after giving effect to the Transaction (including the Term Loan made or to be made and other obligations incurred or to be incurred on the Closing Date), from the chief executive officer, chief financial officer or an executive vice president of the Borrower, substantially in the form of Exhibit D hereto;
(ix) a certified copy of the Warrant Agreement, together with all agreements, instruments and other documents delivered in connection therewith as the Lender shall request; and
(x) such other assurances, certificates, documents, information or consents as the Lender may reasonably require.
(b) To the extent invoiced to the Borrower, the Borrower shall have paid all accrued fees and expenses of the Lender (including the fees, disbursements and other charges of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP) that are due and payable on or before the Closing Date pursuant to Section 10.04;
(c) The Closing Date shall have occurred prior to June 10, 2009.
(d) All conditions to the consummation of the Tender Offer, other than the receipt of the proceeds of the Term Loan, shall have been satisfied and all Subordinated Notes that have been validly tendered in the Tender Offer and not properly withdrawn as of the Closing Date, up to $117,000,000 in aggregate principal amount, shall have been accepted for repurchase by the Borrower and, concurrently with the funding of the Term Loan, all such Subordinated Notes shall have been repurchased by the Borrower for cancellation and all obligations of the Borrower to the holders thereof shall have been satisfied.
(e) All governmental, shareholder and third-party approvals and consents which the Lender determines in its discretion to be necessary, desirable or advisable, in connection with the Transactions or the other transactions contemplated hereby shall have been received on terms and in a form satisfactory to the Lender and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken by any applicable authority.
(f) There shall not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority (i) challenging or seeking damages or other relief in connection with any of the Transactions or the other transactions contemplated hereby, (ii) seeking to enjoin or prevent any of the Transactions or the other transactions contemplated hereby, (iii) that, in the opinion of the Lender, would otherwise materially and adversely affect any of the Transactions or the other transactions contemplated hereby or (iv) that has or could have a Material Adverse Effect on the Borrower or its Subsidiaries or any of the Transactions or the other transactions contemplated hereby.
(g) The Lender shall have received, at least five 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 without limitation the Patriot Act.
(h) The representations, warranties and certifications of or on behalf of the Borrower contained in Article V or any other Loan Document, or which are contained in any certificate or other document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date (in all material respectseach case both before and after giving effect thereto), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that such materiality qualifier shall not apply to for purposes of this Section 4.01, the extent that any such representation or warranty is qualified by materiality, representations and warranties contained in Sections 5.05(a) and (Cb) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, refer to the extent arising out of, resulting from or attributable most recent statements furnished pursuant to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2Sections 6.01(a) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXb).
(i) To No Default or Event of Default has occurred and is continuing, or would result from the extent requested making of the Term Loan or from the application of the proceeds therefrom.
(j) The OEM Agreement shall remain in writing at least ten full force and effect.
(10k) days The Warrant Agreement shall remain in full force and effect.
(l) The Lender shall have received a Borrowing Notice upon not less than three Business Days prior to written notice of the Closing Date, the Lenders .
(m) The Lender shall have received such documentation and other information approvals, opinions or documents as the Lender may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrowerreasonably request.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Senior Subordinated Term Loan Agreement (Quantum Corp /De/)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon and the obligations of each Lender to make Term Loans on the Closing Date is subject to the satisfaction (or waiver by the Required Lenders in accordance their respective sole discretion and, with Section 10.01) respect to any condition affecting the rights and duties of the conditions precedent set forth Administrative Agent, the Administrative Agent, any which waiver by the Required Lenders and the satisfaction of the Required Lenders, with any document described in this Section 4.01; provided that the obligations , as applicable, which may be communicated via an email from each of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) Lender Advisors, of the conditions precedent set forth in Section 4.02following conditions:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of which shall be originals, facsimiles or “pdf” electronic copies the signing Loan Party (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specifieda Loan Party is party thereto), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a an original Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) executed counterparts of the Administrative Agent Fee Letter;
(iv) a certificate security agreement, in substantially the form of Exhibit E hereto (together with each security agreement supplement delivered pursuant to Section 6.11, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) except to the extent required to be delivered pursuant to Section 6.13(c), certificates and instruments, if any, representing the applicable Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy searches and pending lawsuit searches, or equivalent reports or searches, each of a secretary recent date listing all effective financing statements, lien notices or assistant secretary comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent (acting at the Direction of the Borrower Required Lenders) reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (attaching resolutionsother than Permitted Liens),
(D) a Perfection Certificate duly executed by each of the Loan Parties,
(E) a Copyright Security Agreement, incumbency certificates Patent Security Agreement and Trademark Security Agreement (as each such term is defined in the Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to Section 6.11, in each case as amended or supplemented, the “Intellectual Property Security Agreement”), duly executed by each applicable Loan Party, together with evidence that all action that the Administrative Agent may reasonably require deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken, and
(F) Control Agreements, duly executed by the Collateral Agent, each applicable Loan Party and trueeach applicable depository bank or securities intermediary, correct with respect to all Deposit Accounts and complete copies Securities Accounts maintained by the Loan Parties as of Borrower’s Organization Documentsthe Closing Date (other than Excluded Accounts);
(v) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a certificate signed by a Responsible Officer in connection with this Agreement of each Loan Party dated the Closing Date and the other Loan Documents;certifying:
(ivA) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such other customary functionally equivalent certificatejurisdiction) of the Borrower such Loan Party as of a recent date from the such Secretary of State (or other applicable Governmental Authoritysimilar official),
(C) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of Oklahoma;such Loan 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 (D) below,
(vD) [Reserved]that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date 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,
(E) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(F) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(vi) a favorable opinion of each of (A) Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, special counsel to the BorrowerLoan Parties, and (B) GableGotwalsLerman Senter PLLC, special FCC counsel to the BorrowerLoan Parties, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and Lender, in a form reasonably satisfactory to the Administrative Agent and the ArrangersLenders;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(f) and (g) have been satisfied;
(viii) (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in and (B) the aggregate, Quarterly Financial Statements;
(1ix) a material adverse change in, or a material adverse effect upon, certificate attesting to the operations, assets or financial condition Solvency of the Borrower and its Subsidiaries taken as on a whole; provided however consolidated basis after giving effect to the Transactions, from the Borrower’s Vice President and Assistant Secretary, substantially in the form of Exhibit I hereto;
(x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out ofrequired by Section 6.07, resulting from (A) proof of insurance policies (including flood insurance, if applicable) and any endorsements thereto and (B) evidence that all such insurance policies name the Collateral Agent as additional insured (in the case of liability insurance and property insurance) or attributable to any loss payee (solely in the case of the foregoingproperty insurance), shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyapplicable; and
(ixxi) a Flow of Funds Statement executed by a Responsible Officer of the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXBorrower.
(ib) To the extent requested in writing at At least ten two (102) days Business Days prior to the Closing Date, each of the Agents and the Lenders shall have received such all documentation and other information as may be required by them in order regulatory authorities with respect to enable compliance with the Loan Parties reasonably requested by such Agent or Lender at least three (3) Business Days prior to such date under applicable “know your customer” and anti-money laundering rules and regulations, including the information required by USA Patriot Act.
(c) The Borrower shall have paid (or shall have caused to be paid) all fees and out-of-pocket costs and expenses of (i) the USA PATRIOT Act Administrative Agent (including the reasonable and information described in Section 10.18documented fees and expenses of ArentFox Schiff LLP, as counsel to the Administrative Agent) and (ii) the Lenders (including the reasonable and documented fees and expenses of the Lender Advisors), in each case at least five (5) Business Days case, that have been invoiced on or prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by The Lenders shall be reasonably satisfied that all necessary regulatory, governmental and corporate approvals and consents have been received.
(e) Since the Administrative AgentPetition Date, there shall not have occurred any event that has had or would reasonably be expected to have a Material Adverse Effect.
(f) The representations and warranties set forth in the Borrower Loan Documents shall have paid be true and correct in all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) material respects as of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus with the same effect as though made on and as of such date, except to the extent invoiced prior such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, that, to the extent that such representations and warranties are qualified by materiality, material adverse effect or similar language, they shall be true and correct in all respects.
(g) As of the Closing Date, such additional amounts no Event of Attorney Costs as Default or Default shall constitute have occurred and be continuing.
(h) After due inquiry, each Loan Party is unaware of any ongoing or continuing fraudulent activities in connection with its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger)business. Without limiting the generality of the provisions of the last paragraph of Section 9.039.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender of the Lenders that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (Audacy, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) as of the conditions precedent set forth in this Section 4.01; provided that Closing Date upon the obligations satisfaction of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Devon Financing Guaranty, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower Borrower, as applicable in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, Loan Parties and (Bii) GableGotwalsif Devon Financing is a Nova Scotia unlimited company, special Xxxxxxx XxXxxxxx, Nova Scotia counsel to the BorrowerDevon Financing, in each case addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent matters set forth in Exhibit F, as applicable, and such other matters concerning the Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe conditions specified in Sections 5.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (yC) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partycurrent Debt Ratings; and
(ixvii) the financial statements required to be delivered a duly completed Compliance Certificate as of June 30, 2009, signed by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to Responsible Officer of the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(dc) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent Agent; and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03provided further that, for purposes of determining compliance with the conditions specified as used in this Section 4.015.01(c), each Lender that has signed this Agreement “Attorney Costs” shall be deemed include all fees, expenses and disbursements of only one law firm constituting counsel to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeAgent.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement shall become effective on the first day on which the Facility Agent and the Group Agents shall have received the following documents, instruments and fees, all of which shall be effective upon satisfaction in a form and substance acceptable to the them (or waiver in accordance with Section 10.01) of such day, the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:“Effective Date”):
(a) The Administrative Agent’s receipt A certificate of the following, Secretary of each of which shall be originalsthe Borrower, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by Originator and the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
Servicer (i) executed counterparts of this Agreement, in certifying the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary names and signatures of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require officers and true, correct and complete copies of Borroweremployees authorized on such Person’s Organization Documents) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized behalf to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) execute all of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document Transaction Documents to which it is a party; , (ii) attaching a copy of such Person’s organizational documents, including, as applicable, its certificate of incorporation or formation, limited liability company agreement and Bylaws, (3iii) attaching a material adverse effect upon copy of transaction resolutions of, as applicable, the legalityboard of directors, validity, binding effect board of managers or enforceability against sole member of such Person and (iv) attaching a certificate of good standing of the Secretary of State of the jurisdiction of organization of such Person.
(b) A copy of a proper financing statement naming the Borrower as the debtor and the Facility Agent, as secured party, and other similar instruments or documents as may be necessary or, in the reasonable opinion of the Facility Agent and the Group Agents, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Facility Agent’s security interest in all Collateral.
(c) A copy of a proper financing statement naming FIC as debtor, the Borrower as secured party, and the Facility Agent as assignee of the secured party, and other similar instruments or documents as may be necessary or, in the reasonable opinion of the Facility Agent and the Group Agents, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Collateral that is the subject of the Purchase Agreement.
(d) Copies of proper financing statements, if any, necessary to terminate all security interests and other rights of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered Person in Collateral previously granted by the Borrower and the Originator, together with copies of executed lien releases, if any, necessary to terminate all security interests and other rights of any person in Collateral previously granted by the Borrower and the Originator.
(e) Certified copies of requests for information or copies, dated a date reasonably near the Effective Date, listing all effective financing statements which name any of the Originator and the Borrower (under their respective present names and any previous names) as debtor and which are filed both in jurisdictions in which the filings were made pursuant to items (c), (d) and (e) and in those jurisdictions that would have been applicable under the Relevant UCC prior to the enactment of Revised Article 9 thereof, together with copies of such financing statements (none of which shall cover any Collateral or any other property that is the subject of the Transaction Documents).
(f) Evidence of the establishment of the Collateral Account.
(g) Fully executed copies of all Transaction Documents.
(h) An opinion of in-house counsel to the Originator, the Borrower and the Servicer, re: corporate matters.
(i) An opinion of Xxxxx & Xxxxxxx L.L.P., special counsel to the Originator, the Servicer and the Borrower, re: enforceability of the Transaction Documents to which each is a party and other corporate matters.
(j) Opinions of special counsel to the Originator and the Borrower, re: validity and perfection of the security interests granted by the Originator and the Borrower under the Transaction Documents, and other matters.
(k) An opinion of Xxxxx & Xxxxxxx L.L.P., special counsel to the Originator and the Borrower, re: nonconsolidation.
(l) An opinion of Xxxxx & Xxxxxxx L.L.P., special counsel to the Originator and the Borrower, re: true sales.
(m) An opinion of counsel to the Custodian, re: corporate matters.
(n) Evidence that the fees specified in the Fee Letters for payment on or prior to the Closing Effective Date pursuant to Section 6.01 have been paid to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXrelated Group Agents.
(io) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the BorrowerA pro forma Servicer Report for June 2005.
(cp) Any fees Such other documents, instruments, certificates, information and expenses required to be paid by opinions of counsel as the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Facility Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeGroup Agents may reasonably request.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Effective Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower and (B) the Guaranties;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date[Reserved];
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the BorrowerLoan Parties, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan DocumentsLender, and such consents, licenses other matters concerning the Loan Parties and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so requiredthe Loan Documents as the Required Lenders may reasonably request; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;and
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower and each other Loan Party which are contained in Article V are 7 and the Guaranties shall be true and correct in all material respectsrespects on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except provided that in each case, such materiality qualifier shall not apply be applicable to the extent any representations and warranties that any such representation already are qualified or warranty is qualified modified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or materiality in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXtext thereof.
(ib) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18Act, in each case at least five (5) shall have been delivered 3 Business Days prior to the Closing Date, and (ii) at least five (5) Effective Date to the extent requested by the Lenders not less than 7 Business Days prior to the Closing Effective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) [Reserved]
(d) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Effective Date for which invoices have been presented at least 3 Business Days prior to the Effective Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to paid on or before the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Effective Date).
(de) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced at least three Business Days prior to the Closing Effective Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon is subject to the satisfaction (or waiver in accordance with Section 10.01) of each of the following conditions precedent set forth (the date on which such conditions are satisfied or waived, the “Forbearance Effective Date”) as determined by the Administrative Agent in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02its sole discretion:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, Agent shall have received a recent date before the Closing Date):
(i) executed counterparts counterpart of this Agreement, in executed and delivered by the number requested by Borrower, RRI, the Administrative Agent, and the Consenting Lenders;
(iib) a Note executed by the Borrower in favor shall have paid all the fees, expenses and disbursements of each White & Case LLP, Xxxxxxxxx LLP, RPA Advisors, LLC, and any other Lender requesting a Note at least two Business Days prior Financial Advisor for which invoices (subject to redaction to protect privileges or other confidential communications) have been submitted to the Closing DateBorrower;
(iiic) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require representations and warranties contained in this Agreement are and will be true, correct and complete copies of Borrower’s Organization Documents) evidencing the identity, authority in all material respects on and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Forbearance Effective Date and reasonably satisfactory to the Administrative Agent same extent as though made on and the Arrangers;
(vii) a certificate as of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respectsdate, except to the extent that such representations and warranties specifically refer relate to an earlier date, in which case they shall be true were true, correct and correct complete in all material respects on and as of such earlier date;
(d) the Administrative Agent shall have received an initial weekly budget (the “Initial Weekly Budget”) for the 13-week consecutive period commencing with the week ending on May 8, except 2020, which shall be approved by the Administrative Agent in its sole discretion, and the delivery of which shall be a representation by the Borrower that such materiality qualifier Initial Weekly Budget has been prepared based on upon good faith estimates and assumptions that the Borrower believes are reasonable as of the Forbearance Effective Date;
(e) the Administrative Agent shall not apply have received a certificate of a Responsible Officer, in form and substance satisfactory to the extent that Administrative Agent, setting forth as of the Forbearance Effective Date, a true and complete list of all Swap Agreements of each Loan Party, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), any new credit support agreements relating thereto (other than Security Instruments) and any margin required or supplied under any credit support document, and the counterparty to each such representation agreement (the “Existing Swap Agreements”);
(f) the Borrower shall have paid to the Administrative Agent for the benefit of the Lenders a prepayment of the Loans in an aggregate principal amount equal to $20,000,000;
(g) the Borrower shall deliver to the Administrative Agent a long-term business plan and coinciding financial model (the “Long-Term Business Plan”), which shall include operating forecasts, forecasted balance sheets and forecasted statements of income, and cash flows of the Borrower through the fiscal years ending 2020 and 2021 including a scenario with no drilling or warranty is qualified by materialitycompletion capital expenditures;
(h) the Administrative Agent shall have received an accounts payable aging report and analysis for the calendar months of January, February and March 2020;
(i) the Administrative Agent shall have received (i) a capitalization table of RRI and the Borrower reflecting the current corporate, capital, and ownership structure of such Persons, and (Cii) that there has been no event or circumstance since the date illustrative pro forma capitalization table of RRI and the Borrower prepared for X.X. Xxxxxx by Xxxxxxxxx LLC, dated May 2020, reflecting potential equitization of the Audited Financial Statements that has had or could be reasonably expected to haveSecond Lien Obligations, either individually or the Borrower Series B Preferred Units and corresponding Series B Redeemable Preferred Stock of RRI, the Borrower Series A Preferred Units and corresponding Series A Preferred Stock and RRI’s obligations in respect of the aggregateTax Receivables Agreement, depending on alternative valuations (1the “Restructuring Capitalization Table”); and
(j) a material adverse change in, or a material adverse effect upon, the Administrative Agent shall have received such other information regarding the operations, assets or business affairs and financial condition of the Borrower and its Subsidiaries taken such other certificates, documents, instruments and agreements as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders Agent or any Lender shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether request in connection with the Existing transactions contemplated by this Agreement, the Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)other Loan Documents.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Notwithstanding anything to the contrary set forth herein, this Agreement shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and manner reasonably satisfactory to the Administrative Agent and of each of the Arrangers;following conditions:
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (ya) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 delivery to the Administrative Agent; providedAgent of this Agreement executed by each Credit Party, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger Requisite Lenders;
(b) the delivery to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of a copy of the provisions fully executed Corresponding Second Lien Amendment, and evidence that all conditions contained therein (other than the effectiveness of this Agreement) have been satisfied;
(c) the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement Company shall be deemed have paid to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such in immediately available Dollars, for the benefit of each Lender prior who has delivered an executed signature page to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at this Agreement on or prior to 5:00 p.m.P.M., New York City time, on April 15August 17, 2021, and in the event such conditions are not so satisfied or waived2009 (collectively, the Commitments “Signing Lenders”), a non-refundable fee in an aggregate amount equal to 0.10% of each such Signing Lender’s Revolving Commitment and the outstanding principal balance of the Term Loans held by each such Signing Lender, which fee shall terminate at such timebe non-refundable for any reason and fully earned and payable as of the date hereof;
(d) the Company shall have paid all fees then due and payable to the Administrative Agent pursuant to the Credit Documents and, to the extent invoiced by the Administrative Agent not less than two (2) Business Days prior to the Second Amendment Effective Date, shall have reimbursed the Administrative Agent for all reasonable costs and expenses incurred by the Administrative Agent in connection with this Agreement, including, without limitation, the preparation, negotiation and execution of this Agreement (including reasonable attorney’s fees of counsel to the Administrative Agent);
(e) Administrative Agent shall have received a copy of the Certificate of Designations, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by the Company;
(f) the accuracy of the representations and warranties contained in Section 5 hereof; and
(g) no Default or Event of Default under the Credit Agreement shall have occurred and be continuing.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (X Rite Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be deemed effective upon satisfaction as of November 16, 2009 (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; “Effective Date”), provided that all the obligations of following conditions have been satisfied, as determined in Administrative Agent’s and Majority Banks’ sole and absolute discretion, on or before the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02Effective Date:
(a) The Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) duly executed counterparts of this Agreement, in Agreement from Borrower and the number requested by Majority Banks on or before the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Effective Date;
(iiib) a certificate of a secretary Administrative Agent shall have received on or assistant secretary before the Effective Date an executed amended and restated forbearance agreement between Borrower and the requisite holders of the Borrower (attaching resolutions, incumbency certificates as the Senior Notes in form and substance satisfactory to Administrative Agent may reasonably require and trueMajority Banks (the “Amended and Restated Notes Forbearance Agreement”);
(c) Borrower shall have paid all reasonable and documented fees, correct costs and complete copies of Borrower’s Organization Documents) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer expenses incurred in connection with this Agreement and the any other Loan DocumentsDocuments that have been invoiced and are required to be paid hereunder or under the Credit Agreement (including, without limitation, the Forbearance Fee and legal fees and expenses) and, except with respect to the Forbearance Fee, that have been presented to Borrower at least three (3) Business Days prior to the Effective Date;
(ivd) Borrower shall have made a certificate as voluntary repayment of the Revolving Loans such that, after giving effect to such repayment in accordance with the good standing (or such other customary functionally equivalent certificateterms of Sections 3(b) and 7(a) of the Borrower from Intercreditor Agreement, the Secretary aggregate unpaid principal amount of State (or other applicable Governmental Authority) of Oklahoma;the Revolving Loans shall not exceed $132,568,725.12; and
(ve) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the The representations and warranties of the made or deemed made by Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they under this Agreement shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXrespects.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Forbearance Agreement (National Consumer Cooperative Bank /Dc/)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) and the obligation of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders each Lender to make Credit Extensions Loans hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing (or such other customary functionally equivalent certificate) and qualified to engage in business in each jurisdiction within the United States wherein the character of the Borrower from properties owned or held by it or the Secretary nature of State (or other applicable Governmental Authority) of Oklahomathe business transacted by it makes such qualification necessary;
(v) [Reserved];
(vi) a favorable opinion of (A) SkaddenXxxxxx Xxxxxxxxx, ArpsGeneral Counsel for the Loan Parties, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as Lender, and a favorable opinion of Xxxxxx XxXxxxxx, Senior Corporate Counsel for the Closing Date and reasonably satisfactory Loan Parties, addressed to the Administrative Agent and each Lender, as to the Arrangers;matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; and H-712479.11
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan DocumentsDocuments to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (yB) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiib) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe current Debt Ratings, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true not lower than BBB- from S&P and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting Baa3 from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; andXxxxx’x.
(ixc) the financial statements required to be delivered by the Borrower The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Dateincluding, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationinvoiced, the Borrower shall have deliveredreimbursement or payment of all expenses (including, to each Lender that so requests in writing at least ten (10without limitation, Attorney Costs) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be reimbursed or paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger)hereunder. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Questar Market Resources Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) The effectiveness of the conditions precedent agreements set forth in this Section 4.01; provided that the obligations Agreement and of the Lenders 2021-2 Incremental Term Loan Commitments to make Credit Extensions hereunder are subject be provided by it pursuant to satisfaction Section 3 of this Agreement, shall become effective on the date (the “Amendment No. 6 Effective Date”) when each of the following conditions shall have been satisfied (or waiver waived, as applicable) and, in accordance connection with Section 10.01the foregoing, the execution (which may include telecopy or electronic transmission of a signed signature page of this Agreement) by the Administrative Agent of the conditions precedent set forth in Section 4.02this Agreement:
(a) The the Administrative Agent’s receipt Agent shall have received: (i) from (x) each Loan Party, (y) Lenders constituting the Required Lenders and (z) each 2021-2 Incremental Term Lender either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement; and (ii) a Notice of Borrowing with respect to the 2021-2 Incremental Term Loans setting forth the information specified in Section 2.03 of the following, each of which Credit Agreement; (b) the representations and warranties set forth in Section 6 hereof shall be originalstrue and correct; and (c) the Administrative Agent shall have received all documentation and other information about Holdings, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent Borrower and the other Loan Parties that shall have been reasonably requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact 2021-2 Incremental Term Lenders that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be are required by them in order to enable compliance with regulatory authorities under applicable “know your customer,” and anti-money laundering rules and regulations, including without limitation the information required by the USA PATRIOT Act and information described in Section 10.18ACT, in each case at least five (5) Business Days prior to the Closing Dateincluding, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent if the Borrower qualifies as a “legal entity customer” under the requirements of the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the . The Administrative Agent and the Left Lead Arranger to 2021-2 Incremental Term Lenders acknowledge that the extent invoiced prior to the Closing Daterequirements in this clause (c) have been satisfied on behalf of Holdings, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender Loan Parties prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timedate hereof.
Appears in 1 contract
Samples: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) The effectiveness of the conditions precedent agreements set forth in this Section 4.01; provided that the obligations Agreement and of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent amendments set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts 2 of this Agreement, in shall become effective on the number requested by date (the “Amendment No. 11 Effective Date”) when each of the following conditions shall have been satisfied (or waived, as applicable):
6 (a) the Administrative Agent;
Agent shall have received from (x) each Loan Party, (y) the Lenders and (z) the Submitting Revolving Lenders 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 telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement; (b) the Administrative Agent shall have received: (i) a certificate of the Borrower, dated the Amendment No. 11 Effective Date, certifying that (i) the representations and warranties set forth in Section 5 hereof shall be true and correct, and (ii) no Default or Event of Default shall exist or would result from the execution, delivery and performance of this Agreement; (ii) a Note certificate of each Loan Party, dated the Amendment No. 11 Effective Date, executed by an Authorized Officer of such Loan Party, substantially in the Borrower form of Exhibit J to the Credit Agreement (or in favor such other form as the Administrative Agent may agree in its reasonable discretion), certifying that (a) there have been no amendments, restatements or other modifications to each Organizational Document of each Lender requesting a Note at least two Business Days prior Loan Party previously delivered to the Closing Administrative Agent on the Effective Date;
, and each such Organizational Document is in full force and effect on the Amendment No. 11 Effective Date and (b) the signature and incumbency certificates of the Responsible Officers of each Loan Party delivered to the Administrative Agent on the Effective Date remain true and correct, and attaching the documents referred to in clause (iv) below; (iii) a certificate of a secretary or assistant good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental Authority of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies jurisdiction of Borrower’s Organization Documents) evidencing the identity, authority and capacity organization of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
Party; (iv) a certificate copy of the resolutions of the Board of Directors or other governing body, as to the good standing applicable, of each Loan Party (or such other customary functionally equivalent certificatea duly authorized committee thereof) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with authorizing the execution, delivery and performance by the Borrower of this Agreement (and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (yany agreements relating thereto) stating that no such consents, licenses or approvals are so requiredto which it is a party; and (Bv) certifying as the legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the solvency Loan Parties; (on c) the Administrative Agent shall have received a consolidated basis) of completed Perfection Certificate, dated the Borrower Amendment No. 11 Effective Date and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a wholeBorrower; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received a notice from such Lender prior the Borrower pursuant to Section 2.08(c) of the Credit Agreement with respect to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower permanent reduction of no less than an aggregate amount equal to $88,500,000 of the Closing DateNew Class A Revolving Commitments, and such notice which shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., allocated pro rata across all New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.Class A Revolving Commitments;
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless until the date on which each of the foregoing following conditions is satisfied (or waived in accordance with Section 10.01(a)10.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent at the direction of the Required Lenders (which may include telecopy or prior electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Lenders shall reasonably request in connection with the Transactions, all in form and substance satisfactory to 5:00 p.m., New York City timethe Lenders and their respective counsel.
(b) The Administrative Agent shall have received, on April 15behalf of itself, 2021the other Agents and the Lenders, a favorable written opinion of Xxxxx Xxxxx L.L.P., special counsel for the Loan Parties, addressed to the Agents and the Lenders from time to time party thereto and in a form reasonably satisfactory to the event Lenders.
(c) The Administrative Agent shall have received a solvency certificate in the form of Exhibit J to this Agreement, dated the Closing Date and signed by the chief financial officer of Holdings.
(d) The Administrative Agent shall have received such conditions are not so satisfied documents and certificates as the Lenders or waivedtheir respective counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the Commitments shall terminate at such timeauthorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Lenders.
Appears in 1 contract
Samples: First Lien Credit Agreement (Global Geophysical Services Inc)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) executed counterparts of the Master Assignment, sufficient in number for distribution as reasonably requested by the Administrative Agent;
(iii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iiiiv) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(ivv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(vvi) [Reserved];
(vivii) a favorable opinion of (A) SkaddenGableGotwals, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and Date, reasonably satisfactory to the Administrative Agent and the Arrangers;
(viiviii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in“materially adverse”, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in“materially adverse”, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ixx) The Borrower shall have delivered the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(ib) To the extent requested in writing at least ten (10) days prior to the Closing Date, the The Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date)Agent.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 5 p.m., New York City time, on April 15December 4, 20212017, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (ONE Gas, Inc.)
Conditions to Effectiveness of this Agreement. This Agreement shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) of when all the conditions precedent set forth in this Section 4.01; provided that 4 shall have been satisfied or waived by Administrative Agent or Lenders, as applicable (the obligations date such conditions are satisfied being the “Amendment No. 2 Effective Date”).
4.1 Administrative Agent shall have executed this Agreement, in its capacity as Administrative Agent, and shall have received counterparts of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) this Agreement executed by Borrower, each Lender and Calculation Agent.
4.2 Administrative Agent shall have received a certificate executed by a Responsible Officer of the conditions precedent set forth in Section 4.02Borrower certifying that:
(a) The Administrative Agent’s receipt Each of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly representations and warranties made by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (or, Borrower set forth in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary Article V of the Borrower Amended Loan Agreement (attaching resolutionsother than, incumbency certificates as for the Administrative Agent may reasonably require and trueavoidance of doubt, correct and complete copies of Borrower’s Organization DocumentsSection 5.20 contained therein) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they Documents shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case to that extent it shall be true and correct in all respects) on and as of the date hereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (except to the extent such representations and warranties are already qualified by materiality, in which case to that extent they shall be true and correct in all respects) as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party); and
(ixb) No Default shall exist as of the financial statements required Amendment No. 2 Effective Date and immediately after the effectiveness of this Agreement and the transactions contemplated hereby.
4.3 Administrative Agent shall have received (x) such documents and certifications as Administrative Agent may reasonably require to be evidence that Borrower is duly organized or formed under the Laws of the jurisdiction of its organization and is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation and each other jurisdiction where it is conducting business and (y) resolutions or other evidence of organizational action authorizing the execution, delivery and performance of this Agreement and the Amended Loan Agreement, in each case, and substantially consistent with those delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to in connection with the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXentering into of the Loan Documents.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders 4.4 Administrative Agent shall have received such documentation customary legal opinions of each of (x) Xxxxx Xxxxx L.L.P., counsel to Borrower and other information as may be required by them in order (y) Sidley Austin LLP, counsel to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18Borrower, in each case at least five case, addressed to the Lenders and Agents, as to such matters as the Lenders and Agents may reasonably request with respect to this Agreement.
4.5 Borrower shall pay an amendment fee (5the “Amendment Fee”) directly to each Lender as of the Amendment No. 2 Effective Date in the amount set forth on Schedule 1 hereto. The Amendment Fee is due and payable in full and shall be fully earned on the Amendment No. 2 Effective Date and shall be nonrefundable for any reason whatsoever.
4.6 Borrower shall have delivered to each applicable Lender a Form U-1 or Form G-3 or an amendment to a Form U-1 or Form G-3 previously delivered to such Lender under the Amended Loan Agreement, duly executed by a Responsible Officer (unless such Lender has confirmed that it does not require such form).
4.7 Borrower shall have paid all reasonable, documented and out-of-pocket fees, charges and disbursements of counsel to the Lenders and Agents to the extent invoiced two (2) Business Days prior to the Closing Amendment No. 2 Effective Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (; provided that such estimate amount shall not thereafter preclude a final settling of accounts such amounts between Borrower, such Lenders and Agents; provided, further, that, in each case, in the Borrower case of legal fees and expenses, such fees and expenses shall be limited to the reasonable and documented fees, charges and disbursements of a single counsel to Agents and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03Lenders, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to taken as a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timewhole.
Appears in 1 contract
Samples: Margin Loan Agreement and Collateral Account Control Agreement (Gci, LLC)
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) The effectiveness of the conditions precedent agreements set forth in this Section 4.01; provided that the obligations Agreement and of the Lenders obligation of each Incremental No. 3 Revolving Lender to make Credit Extensions hereunder are subject provide its Incremental No. 3 Revolving Commitment to satisfaction be provided by it pursuant to Section 2(a) of this Agreement, shall become effective on the date (the “Incremental Facility Agreement No. 3 Effective Date”) when each of the following conditions shall have been satisfied (or waiver waived, as applicable) and, in accordance connection with Section 10.01the foregoing, the execution (which may include telecopy or electronic transmission of a signed signature page of this Agreement) by the Administrative Agent of the conditions precedent set forth in Section 4.02this Agreement:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, Agent shall have received from each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
Loan Party and each Incremental No. 3 Revolving Lender either (i) executed counterparts a counterpart of this Agreement, in the number requested by the Administrative Agent;
Agreement signed on behalf of such party or (ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary or assistant secretary of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably written evidence satisfactory to the Administrative Agent and the Arrangers(which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(viib) a certificate of a Responsible Officer of the Borrower representations and warranties set forth in Section 5 hereof shall be true and correct;
(Ac) either (x) attaching copies of the Administrative Agent shall have received all consentsdocumentation and other information about Holdings, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the other Loan Documents, and such consents, licenses and approvals Parties that shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has have been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered requested by the Borrower on or prior to Administrative Agent and the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, Incremental No. 3 Revolving Lenders that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be are required by them in order to enable compliance with United States regulatory authorities under applicable “know your customer,” and anti-money laundering rules and regulations, including without limitation the information required by the USA PATRIOT Act and information described in Section 10.18ACT, in each case at least five (5) Business Days prior to the Closing Dateincluding, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent if the Borrower qualifies as a “legal entity customer” under the requirements of the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.;
(cd) Any at the time of and immediately after giving effect to the provision of the Incremental No. 3 Revolving Commitments, no Default or Event of Default shall have occurred and be continuing;
(e) the Borrower shall have paid upfront fees to the Incremental No. 3 Revolving Lenders in an amount equal to 1.0% of the aggregate principal amount of the Incremental No. 3 Revolving Commitments provided by each such Lender on the Incremental Facility Agreement No. 3 Effective Date (such fees described in the foregoing section to be payable in immediately available funds);
(f) the Administrative Agent and the Lenders shall have received payment for all reasonable and documented and invoiced out-of-pocket costs and expenses required to be paid by or reimbursed under Section 9.03 of the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall Incremental Facility Agreement No. 3 Effective Date, for which invoices have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced presented at least three Business Days prior to the Closing Incremental Facility Agreement No. 3 Effective Date).; and
(dg) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from received:
(i) a certificate of each Loan Party, dated the Incremental Facility Agreement No. 3 Effective Date, executed by an Authorized Officer of such Lender prior Loan Party, substantially in the form of Exhibit J to the proposed Closing Date specifying its objection thereto. The Credit Agreement (or in such other form as the Administrative Agent shall notify may agree in its reasonable discretion), certifying that (a) there have been no amendments, restatements or other modifications to each Organizational Document of each Loan Party previously delivered to the Lenders and Administrative Agent on the Borrower of the Closing Effective Date, and each such notice shall be binding Organizational Document is in full force and conclusiveeffect on the Incremental Facility Agreement No. Notwithstanding 3 Effective Date and (b) the foregoingsignature and incumbency certificates of the Responsible Officers of each Loan Party delivered to the Administrative Agent on the Effective Date remain true and correct, and attaching the documents referred to in clause (iii) below;
(ii) a certificate of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental Authority of the jurisdiction of organization of each Loan Party;
(iii) a copy of the resolutions of the Board of Directors or other governing body, as applicable, of each Loan Party (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of this Agreement (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the obligations obtaining of the Lenders Incremental No. 3 Revolving Commitments contemplated hereunder;
(iv) the legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to make Loans Holdings, the Borrower and its Subsidiaries; and
(v) a certificate of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each Borrower, dated the Incremental Facility Agreement No. 3 Effective Date and substantially in the form of the foregoing closing certificate delivered in connection with Amendment No. 1, confirming compliance with the conditions is satisfied set forth in Sections 8(b) and (or waived in accordance with Section 10.01(ad)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and each Borrower and (B) the Guaranties;
(ii) a Note executed by the Borrower each Borrower, as applicable in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx Meagher & Xxxx Flom LLP, special counsel to the BorrowerLoan Parties, (ii) Bennett Jones LLP, counsel to the Canadian Borrowers, and (Biii) GableGotwalsStewart McKelvey, special counsel to the BorrowerCanadian Borrowers, in each case addressed to the Administrative Agent and each Lender Lender, as of applicable, and such other matters concerning the Closing Date and reasonably satisfactory to the Administrative Agent Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the U.S. Borrower certifying (A) that no Default existsthe conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1C) the current Debt Ratings;
(vii) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition copy of the duly completed compliance certificate as of June 30, 2012, signed by a Responsible Officer of the U.S. Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, delivered in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, connection with the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyExisting Credit Agreement; and
(ixviii) evidence of termination of the financial statements required to be delivered by the Borrower on Commitments as defined in Existing Credit Agreement and repayment or prior to refinancing of all loans thereunder simultaneously with the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXDate.
(ib) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required Act, shall have been delivered 3 Business Days prior to the Closing Date to the extent requested by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Lenders not less than 7 Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any All accrued but unpaid interest, facility fees, utilization fees, letter of credit fees, and other fees and expenses due and payable under the Existing Credit Agreement shall be paid on the Closing Date.
(d) Any fees required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(de) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent Agent; and provided further that, as used in this Section 6.01(e), “Attorney Costs” shall include (i) all fees, expenses and disbursements of only one law firm constituting U.S. counsel to the Left Lead Arranger)Administrative Agent, and (ii) all fees, expenses and disbursements of only one law firm constituting Canadian counsel to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon is subject to prior or concurrent satisfaction (or waiver in accordance with Section 10.01) of each of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02following conditions:
(a) The Administrative Agent’s receipt This Agreement shall have been duly executed and delivered by each of the followingBorrower, Holdings, each of Guarantor, each Agent and each Lender.
(b) The Borrower shall have executed and delivered the Fee Letter, which shall be originalsin full force and effect, facsimiles or “pdf” electronic copies (followed promptly by originals and all fees and other amounts required to be paid on the Closing Date shall have been paid on the Closing Date to the extent requested by invoiced reasonably in advance of the Closing Date.
(c) The Administrative AgentAgent shall have received, on behalf of itself, the Lenders and each L/C Issuer, opinions of (i) unless otherwise specifiedFried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, (ii) Xxxx Xxxxxxxx Xxxxxx & Vice PLLC and (iii) Xxxxxxx & Xxxxx, P.A., special counsel for the Loan Parties, in each case dated the Closing Date and addressed to the Administrative Agent and the Lenders and in each case in form and substance reasonably satisfactory to the Administrative Agent.
(ord) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, in the case including all amendments thereto, of certificates each Loan Party, certified, if applicable, as of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor Secretary of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(iii) a certificate of a secretary State or assistant secretary similar Governmental Authority of the Borrower (attaching resolutionsjurisdiction of its organization, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificatewhere relevant) of the Borrower each Loan Party as of a recent date, from the such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary (or other applicable Governmental Authoritya director in lieu thereof) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skaddeneach Loan Party, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of dated the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower certifying (A) either that attached thereto is a true and complete copy of the by-laws, memorandum and articles of association or operating (xor limited liability company) attaching copies agreement of all consentssuch Loan Party as in effect on the Closing Date, licenses (B) that attached thereto is a true and approvals required in connection with complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan DocumentsDocuments to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and, in the case of Holdings, that the Guaranty hereunder, and that such consentsresolutions have not been modified, licenses rescinded or amended and approvals shall be are in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default exists, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has the certificate or articles of incorporation or organization of such Loan Party have not been no event or circumstance amended since the date of the Audited Financial Statements that has had last amendment thereto shown on the certificate of incorporation or could be reasonably expected organization furnished pursuant to have, either individually or in the aggregate, clause (1i) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occurabove, and (zD) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, as to the extent arising out of, resulting from or attributable to any incumbency and specimen signature of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under each officer executing any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower on behalf of any such Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXParty.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Credit Agreement (Res Care Inc /Ky/)
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon satisfaction (or waiver in accordance with Section 10.01) as of the conditions precedent set forth in this Section 4.01; provided that Closing Date upon the obligations satisfaction of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Devon Financing ULC Guaranty, sufficient in the number requested by for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower Borrower, as applicable in favor of each Lender requesting a Note at least two Business Days prior to the Closing DateNote;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which such Loan Party is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that each Loan Party is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (such Loan Party’s organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion opinions of (Ai) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, Loan Parties and (Bii) GableGotwalsXxxxxxx XxXxxxxx, special counsel to the BorrowerDevon Financing ULC, in each case addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent matters set forth in Exhibit F, as applicable, and such other matters concerning the Loan Parties and the ArrangersLoan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe conditions specified in Sections 5.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (yC) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partycurrent Debt Ratings; and
(ixvii) the financial statements required to be delivered a duly completed Compliance Certificate as of June 30, 2008, signed by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXX.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such documentation and other information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the information required by the USA PATRIOT Act and information described in Section 10.18, in each case at least five (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to Responsible Officer of the Borrower.
(cb) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(dc) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent Agent; and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03provided further that, for purposes of determining compliance with the conditions specified as used in this Section 4.015.01(c), each Lender that has signed this Agreement “Attorney Costs” shall be deemed include all fees, expenses and disbursements of only one law firm constituting counsel to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeAgent.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Effective Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date):) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, in the number reasonably requested by the Administrative Agent;
(ii) a Note executed by the Borrower Xxxxxxxx, as applicable in favor of each Lender requesting a Note Note, to the extent requested at least two 3 Business Days prior to the Closing Effective Date;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which Borrower is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that Borrower is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (its organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion of (A) SkaddenXxxxxxxx and Xxxxx XXX, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case Borrower addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by matters concerning the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries;and
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe conditions specified in Section 6.02
(a) have been satisfied (on and as of the Effective Date rather than the date of such Borrowing), (B) that the representations no Default shall exist and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materialitycontinuing, and (Cc) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXMaterial Adverse Effect.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulationsAML/KYC Laws, including the information required by the USA PATRIOT Act and information described in Section 10.18Act, in each case at least five (5) shall have been delivered 3 Business Days prior to the Closing Date, and (ii) at least five (5) Effective Date to the extent requested by the Lenders not less than 7 Business Days prior to the Closing Date, to the extent the Effective Date and (ii) a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Regulation shall have deliveredbeen delivered 3 Business Days prior to the Effective Date, to each Lender that so requests in writing at least ten (10) days not less than 7 Business Days prior to the Closing Effective Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) A true, correct and complete copy of the Acquisition Agreement, and all material documents executed in connection therewith shall have been delivered to the Administrative Agent.
(d) Any fees and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Effective Date pursuant to this Agreement and the Fee Letter shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent paid (in the case of expenses, to the extent invoiced at least two (2) Business Days prior to the Closing Effective Date).
(de) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Effective Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent Agent; and provided further that, as used in this Section 6.01(e), “Attorney Costs” shall include all fees, expenses and disbursements of only one law firm constituting counsel to the Left Lead Arranger)Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Samples: Delayed Draw Term Loan Credit Agreement (Devon Energy Corp/De)
Conditions to Effectiveness of this Agreement. This The effectiveness of this Agreement shall be effective upon is subject to prior or concurrent satisfaction (or waiver in accordance with Section 10.01) of each of the conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02following conditions:
(a) The Administrative Agent’s receipt This Agreement shall have been duly executed and delivered by each of the followingBorrower, Holdings, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specifiedGuarantor, each dated Agent and each Lender, including each “Lender” under the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least two Business Days Previous Credit Agreement immediately prior to the Closing Date;.
(b) Each of the Corporate Co-Borrower and the LLC Co-Borrower shall have executed and delivered the Fee Letters and each such letter shall be in full force and effect, and all fees and other amounts required to be paid on the Closing Date shall have been paid.
(c) The Administrative Agent shall have received, on behalf of itself, the Lenders and each L/C Issuer, opinions of (i) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, (ii) Xxxx Xxxxxxxx Xxxxxx & Vice PLLC, (iii) a certificate of a secretary or assistant secretary of Xxxxx Xxxxx Xxxx LLC, (iv) Xxxx Xxxxxxx LLP and (v) K&L Gates LLP, special counsel for the Borrower (attaching resolutionsLoan Parties, incumbency certificates as in each case dated the Closing Date and addressed to the Administrative Agent may reasonably require and truethe Lenders and in each case in form and substance satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, correct and complete copies of Borrower’s Organization Documents) evidencing the identityincluding all amendments thereto, authority and capacity of each Responsible Officer thereof authorized to act Loan Party, certified, if applicable, as of a Responsible Officer in connection with this Agreement recent date by the Secretary of State or similar Governmental Authority of the jurisdiction of its organization, and the other Loan Documents;
(iv) a certificate as to the good standing (or such other customary functionally equivalent certificatewhere relevant) of the Borrower each Loan Party as of a recent date, from the such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary (or other applicable Governmental Authoritya director in lieu thereof) of Oklahoma;
(v) [Reserved];
(vi) a favorable opinion of (A) Skaddeneach Loan Party, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of dated the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower certifying (A) either that attached thereto is a true and complete copy of the by-laws, memorandum and articles of association or operating (xor limited liability company) attaching copies agreement of all consentssuch Loan Party as in effect on the Closing Date, licenses (B) that attached thereto is a true and approvals required in connection with complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan DocumentsDocuments to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and, in the case of Holdings, that the Guaranty hereunder, and that such consentsresolutions have not been modified, licenses rescinded or amended and approvals shall be are in full force and effect, (C) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of incorporation or organization furnished pursuant to clause (yi) stating that no such consentsabove, licenses or approvals are so required; and (BD) certifying as to the solvency incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary or director of Holdings executing the certificate pursuant to clause (on ii) above.
(e) The U.S. Security Agreement and each Intellectual Property Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a consolidated basisparty thereto, and to the extent not previously delivered prior to the Closing Date in connection with the Previous Credit Agreement, together with (x) certificates, if any, representing the Equity Interests of the Borrower and its Subsidiaries;any Restricted Subsidiary that is a Domestic Subsidiary and is directly owned by any Loan Party, accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(viiif) The Administrative Agent shall have received a certificate in form and substance reasonably satisfactory to the Joint Lead Arrangers, dated the Closing Date and signed by a Director or Responsible Officer of the Borrower, certifying that the Borrower is Solvent as of the Closing Date (after giving effect to the Transactions).
(g) The Administrative Agent shall have received a certificate in form and substance reasonably satisfactory to the Joint Lead Arrangers, dated the Closing Date and signed by a Director or Responsible Officer of the Borrower, certifying that (Ai) that no Default exists, (B) that the representations and warranties of the Borrower contained each Loan Party set forth in Article V are and in each other Loan Document shall be true and correct in all material respectsrespects on and as of the Closing Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, date and (Cii) that there has been no event Default shall exist or circumstance since would result from the transactions to occur on the Closing Date (including the proposed Credit Extension on such date and the application of the proceeds therefrom).
(h) The Initial Lenders shall have received the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in and the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXUnaudited Financial Statements.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the The Initial Lenders shall have received such all documentation and other information as may be required by them in order regulatory authorities with respect to enable compliance with the Borrower and Holdings reasonably requested by the Initial Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including the information required by without limitation the USA PATRIOT Act and information described in Section 10.18, in each case Act; provided that the Initial Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least five three (5) Business Days prior to the Closing Date, and (ii) at least five (5) Business Days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests in writing at least ten (103) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the BorrowerDate and are not unduly burdensome on any person unless required by applicable Law.
(cj) Any fees The refinancing of all or a portion of the Onex Bridge, the Equity Contribution and expenses required to be paid by the Borrower (whether in connection with the Existing Credit Agreement Acquisition shall occur simultaneously or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers consummated and the Administrative Agent (in Holdings Capitalization and the case Merger shall have been consummated substantially concurrently with the borrowing of expenses, to the extent invoiced prior to the Closing Date)Term B Loans.
(dk) Unless waived by With respect to the Administrative AgentExisting Senior Notes, the Borrower all tendered Existing Senior Notes accepted for purchase shall have paid all Attorney Costs (related been purchased or steps shall have been made to Xxxxxx purchase them and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger with respect to the extent invoiced prior to any untendered Existing Senior Notes that will remain outstanding following the Closing Date, plus the Borrower will have (i) if Existing Senior Notes representing a majority of the outstanding principal have been accepted for purchase, issued an irrevocable notice to redeem such Existing Senior Notes or (ii) if clause (i) does not apply, commenced steps to defease or discharge such Existing Senior Notes in each case pursuant to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality terms of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the indenture governing such Existing Senior Notes.
(l) The Administrative Agent shall have received notice from such Lender prior to other documents as the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Dateor its counsel may have reasonably requested, and such notice shall be binding and conclusive. Notwithstanding the foregoingincluding, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived without limitation, those documents set forth in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeExhibit N hereto.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement is being executed and delivered on the Closing Date and shall be become effective upon the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the conditions precedent set forth in Section 4.02precedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals, originals or facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agentoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, in the number reasonably requested by the Administrative Agent;
(ii) a Note executed by the Borrower Xxxxxxxx, as applicable in favor of each Lender requesting a Note Note, to the extent requested at least two 3 Business Days prior to the Closing Date;
(iii) a certificate such certificates of a secretary resolutions or assistant secretary of the Borrower (attaching resolutionsother action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require and true, correct and complete copies of Borrower’s Organization Documents) 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 DocumentsDocuments to which Borrower is a party;
(iv) a certificate such documents and certificates as the Administrative Agent may reasonably require to the evidence that Borrower is duly organized or formed, validly existing and in good standing (or such other customary functionally equivalent certificate) issued by appropriate public officials of the Borrower from the Secretary jurisdiction of State (its organization or other applicable Governmental Authority) of Oklahomaformation;
(v) [Reserved];
(vi) a favorable opinion of (A) Skadden, Arps, Slate, Xxxxxxx Xxxxxx & Xxxx Xxxxxx LLP, special counsel to the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case Borrower addressed to the Administrative Agent and each Lender Lender, as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangers;
(vii) a certificate of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by matters concerning the Borrower and the validity against Loan Documents as the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (on a consolidated basis) of the Borrower and its SubsidiariesRequired Lenders may reasonably request;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that no Default existsthe conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that the representations and warranties of the Borrower contained in Article V are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (1C) the current Debt Ratings; and
(vii) a material adverse change incopy of the duly completed compliance certificate as of December 31, or 2022, signed by a material adverse effect upon, the operations, assets or financial condition Responsible Officer of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, delivered in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, connection with the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and
(ix) the financial statements required to be delivered by the Borrower on or prior to the Closing Date pursuant to Section 6.01 to the Administrative Agent; provided, however, that such delivery may be completed by making such financial statements available on XXXXXExisting Credit Agreement.
(i) To the extent requested in writing at least ten (10) days prior to the Closing Date, the Lenders shall have received such All documentation and other information as the Lenders may be required by them require in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulationsAML/KYC Laws, including the information required by the USA PATRIOT Act and information described in Section 10.18Act, in each case at least five (5) shall have been delivered 3 Business Days prior to the Closing Date, and (ii) at least five (5) Date to the extent requested by the Lenders not less than 7 Business Days prior to the Closing Date, to the extent the Date and (ii) a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Regulation shall have deliveredbeen delivered 3 Business Days prior to the Closing Date, to each Lender that so requests in writing at least ten (10) days not less than 7 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any All accrued but unpaid interest, facility fees, utilization fees, letter of credit fees, and other fees and expenses due and payable under the Existing Credit Agreement shall be paid on the Closing Date, and the refinancing of all loans thereunder shall occur simultaneously with the Closing Date.
(d) Any fees required to be paid by the Borrower (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, to the extent invoiced prior to the Closing Date).
(de) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent Agent; and provided further that, as used in this Section 6.01(e), “Attorney Costs” shall include all fees, expenses and disbursements of only one law firm constituting counsel to the Left Lead Arranger)Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.0311.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time.
Appears in 1 contract
Conditions to Effectiveness of this Agreement. This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) The amendment and restatement of the conditions precedent set forth Existing Mortgage Revolving/Term Credit Agreement contemplated by this Agreement, and the obligation of each Bank to make its initial Loan under this Agreement, is subject to the determination of each Bank, in this Section 4.01; provided its sole and absolute discretion, that the obligations each of the Lenders to make Credit Extensions hereunder are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent set forth in Section 4.02has been fulfilled:
(a) The Administrative Agent’s receipt the Agent shall have received each of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals to the extent requested by the Administrative Agent) unless otherwise specified, each dated the Closing Date (orin form and substance and, in the case of certificates of governmental officialsthe materials referred to in clauses (i), (ii), (iii), (vi) and (vii), certified in a recent date before manner satisfactory to the Closing Date):Agent:
(i) executed counterparts a certificate of this Agreementthe Secretary or an Assistant Secretary of the Borrower, dated the requested date for the making of such Loan, substantially in the number requested by form of Schedule 2.01(a)(i), to which shall be attached copies of the Administrative Agentresolutions and by-laws referred to in such certificate;
(ii) a Note executed copy of the certificate or articles of incorporation of the Borrower, certified, as of a recent date, by the Borrower in favor Secretary of each Lender requesting a Note at least two Business Days prior to State or other appropriate official of the Closing DateBorrower's jurisdiction of incorporation;
(iii) a good standing certificate with respect to the Borrower, issued as of a secretary recent date by the Secretary of State or assistant secretary other appropriate official of the Borrower (attaching resolutions, incumbency certificates as the Administrative Agent may reasonably require and true, correct and complete copies Borrower's jurisdiction of Borrower’s Organization Documents) 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 Documentsincorporation;
(iv) a certificate an opinion of counsel for the Borrower, dated the requested date for the making of such Loan, in the form of Schedule 2.01(a)(iv), with such changes as to the good standing (or such other customary functionally equivalent certificate) of the Borrower from the Secretary of State (or other applicable Governmental Authority) of OklahomaAgent shall approve;
(v) [Reserved]an opinion of counsel for the Agent, dated the requested date for the making of such Loan, in the form of Schedule 2.01(a)(v), with such changes as the Agent shall approve;
(vi) a favorable opinion certificate in the form of (A) SkaddenSchedule 2.01(a)(vi), Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to with such changes as the Borrower, and (B) GableGotwals, special counsel to the Borrower, in each case addressed to the Administrative Agent and each Lender as of the Closing Date and reasonably satisfactory to the Administrative Agent and the Arrangersshall approve;
(vii) a certificate copy of a Responsible Officer of the Borrower (A) either (x) attaching copies of all consents, licenses each Governmental Approval and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, other consent or (y) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the solvency (approval listed on a consolidated basis) of the Borrower and its SubsidiariesSchedule Annex C-3;
(viii) a certificate signed by a Responsible Officer of the vice chairman or chief financial officer of the Borrower, dated the requested date for the making of such Loan, setting forth the manner and degree of detail in which the Borrower certifying will make the calculations required by paragraph 3 of Schedule Annex E-1(c);
(ix) a duly executed Note for each Bank;
(x) either (A) that no Default existssuch duly executed UCC-1 financing statements, or UCC-3 amendments to financing statements, and other documents as the Agent may request, the filing or recordation of which is necessary or appropriate in the Agent's determination to create or perfect a security interest in the Collateral under Applicable Law, or (B) that the representations and warranties evidence of the Borrower contained filing or recordation of the same in Article V are true such offices as the Agent shall have specified;
(xi) such instruments and correct other documents as the Agent may request, the possession of which is necessary or appropriate in all material respectsthe Agent's determination to create or perfect a security interest in the Collateral under Applicable Law;
(xii) an appraisal, except in a form and substance and as of a date satisfactory to the extent that such representations Agent, of the HFI Borrowing Base Servicing Rights, the HFS Borrowing Base Servicing Rights and warranties specifically refer to the Hedge Contracts, prepared by an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply appraiser or appraisers satisfactory to the extent that any such representation or warranty is qualified by materialityAgent;
(xiii) five duly executed, and (C) that there has been no event or circumstance since the date undated copies of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition FNMA Power of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, (y) the fact that the Borrower is unable to borrow in the commercial paper market shall not, in and of itself, be deemed to constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur, and (z) neither the weather conditions during February 2021 and March 2021 in the territories where the Borrower and its Subsidiaries operate nor the related disruptions in the natural gas markets, nor any event or circumstance, individually or in the aggregate, to the extent arising out of, resulting from or attributable to any of the foregoing, shall constitute or be taken into account in determining whether a material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or could be reasonably expected to occur; (2) a material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a partyAttorney; and
(ixxiv) such additional materials as any Bank may have requested pursuant to Section 1(f) of Annex E;
(b) all fees payable on or prior to the financial statements required requested date of such Loan pursuant to be Section 1.08, and all amounts payable pursuant to Section 9.02 for which invoices have been delivered by to the Borrower on or prior to the Closing Date pursuant to Section 6.01 such date, shall have been paid in full or arrangements satisfactory to the Administrative Agent; provided, however, that Agent shall have been made to cause them to be paid in full concurrently with the disbursement of the proceeds of the Loan to be made on such delivery may be completed by making such financial statements available on XXXXX.date;
(ic) To all acts and conditions (including the extent requested in writing at least ten (10obtaining of any necessary Governmental Approvals and the making of any required filings, recordings or registrations) days prior required to be done and performed and to have happened precedent to the Closing Dateexecution, delivery and performance of the Lenders Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have received such documentation been done and other information as may be required by them performed and shall have happened in order to enable due and strict compliance with applicable “know your customer” and anti-money laundering rules and regulationsall Applicable Law or if any of such have not been done, including the information required by the USA PATRIOT Act and information described in Section 10.18performed or happened, in each case at least five (5) Business Days prior such has been expressly disclosed to the Closing Date, Agent and waived by all of the Banks in writing;
(iid) at least five (5) Business Days prior the Borrower shall have made arrangements satisfactory to the Closing DateAgent such that, to upon the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationeffectiveness of this Agreement, the Borrower shall have delivered, to each Lender borrowed and repaid the Loans in amounts such that so requests the Loans (and the Types thereof) shall be pro rata in writing at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.accordance with Section 1.14; and
(ce) Any fees and expenses required to be paid by the Borrower all amounts (whether in connection with the Existing Credit Agreement or this Agreement) on or before the Closing Date shall have been paidother than, including upfront fees payable to Lenders and fees and expenses payable to the Arrangers and the Administrative Agent (in the case of expenses, any Bank under the Existing Revolving/Term Credit Agreement that shall continue to be a Bank immediately after the Effective Date) owing pursuant to the extent invoiced prior Existing Revolving/Term Credit Agreement to the Closing Date).
(d) Unless waived by the Administrative Agent, Co-Agents, Collateral Agent or any Bank (as such term is defined in the Borrower Existing Revolving/Term Credit Agreement) shall have been paid all Attorney Costs (related to Xxxxxx and Xxxxx, LLP) of the Administrative Agent and the Left Lead Arranger in full or arrangements satisfactory to the extent invoiced prior to the Closing Date, plus to the extent invoiced prior to the Closing Date, such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to Xxxxxx and Xxxxx, LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior been made to cause them to be paid in full concurrently with the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower disbursement of the Closing Date, and such notice shall be binding and conclusive. Notwithstanding the foregoing, the obligations proceeds of the Lenders Loans to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with Section 10.01(a)) at or prior to 5:00 p.m., New York City time, be made on April 15, 2021, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timedate.
Appears in 1 contract
Samples: Secured Revolving/Term Credit Agreement (Resource Bancshares Mortgage Group Inc)
