Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024): (a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date; (b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such). (c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned). (d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment: (i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes; (ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents; (iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions); (iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith; (v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization; (vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent; (vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and (viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent. (e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date. (f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date. (g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiverwaiver by the Administrative Agent and the Existing Lenders) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Existing Lenders, the extent provided therein) L/C Issuer, the Swine Line Lender, the Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to that certain Senior Secured Credit Agreement, dated as of September 28, 2023 (and as amended, restated, supplemented or otherwise modified from time to time), by and among the Parent, the lenders from time to time party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(f) the Administrative Agent shall have receivedreceived such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party and such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(g) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least 3 business days two (2) Business Days prior to the Fourth Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel) and (ii) all other compensation required to be paid on or prior to the Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Amendment Effective Date, the Lead Arrangers (as defined in the Engagement Letter) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and a Beneficial Ownership Certification in relation to the extent required thereby, Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably is requested in writing by any Lender at least 5 business days ten (10) Business Days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among the United States Cellular Corporation, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among Telephone and Data Systems, Inc., the lenders party thereto and Export Development Canada, as a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among the Borrower, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among Telephone and Data Systems, Inc., as borrower, the lenders party thereto and Export Development Canada, as a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of this A. This Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Third Amendment Effective Date”) of when each of the following conditions shall have been satisfied:
(i) Company, the date Subsidiary Guarantors, the Administrative Agent and the Requisite Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of such satisfaction being facsimile or other electronic transmission) the “Fourth Amendment Effective Date” so long as such date occurs on or prior same to December 31, 2024):the Administrative Agent;
(ii) the Administrative Agent shall have received from Company and each other Loan Party the following:
(a) The prior an officer’s certificate certifying that no amendments, modifications or substantially simultaneous satisfaction changes have been made to (x) the Certificate or Articles of Incorporation or other appropriate organizational documents of such Loan Party and (y) the conditions set forth in Section 3 (as and Bylaws or similar organizational documents of such Loan Party, since such documents were previously delivered to the extent provided therein) and Administrative Agent, together with a good standing certificate from the occurrence Secretary of State of such Loan Party’s jurisdiction of incorporation or formation each dated a recent date prior to the Fourth Third Amendment Closing Effective Date;
(b) The Specified LSP Acquisition resolutions of the Board of Directors or similar governing body of such Loan Party (or other evidence reasonably satisfactory to the Administrative Agent) approving and authorizing the execution, delivery and performance of this Amendment and the Amended Credit Agreement (as defined below), certified as of the Third Amendment Effective Date by the corporate secretary, an assistant secretary or a Responsible Officer of such Loan Party as being in full force and effect without modification or amendment; and
(c) signature and incumbency certificates of the officers of such Loan Party executing this Amendment;
(iii) the representations and warranties contained in Section 5 of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty already qualified by materiality, in all respects) on and as of the Third Amendment Effective Date to the same extent as though made on and as of that date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (or, in the case of any representation or warranty already qualified by materiality, in all respects) on and as of such earlier date) and as if each reference in any such representation or warranty to “this Agreement” or “the Credit Agreement” included reference to this Amendment and to the Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”);
(iv) the Administrative Agent shall have received from Company an Officer’s Certificate certifying that the Sale has been consummated or shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer Administrative Agent shall have received an opinion of each New Loan Party▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, special counsel to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as with respect to the enforceability of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders Amended Credit Agreement and corporate authorization of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (yvi) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, received at least 3 business days three Business Days prior to the Fourth Third Amendment Effective Date, Date all documentation and other information about the Investors (as defined in the Amended Credit Agreement) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ACT, that has been requested by the Administrative Agent in writing at least six Business Days prior to the Third Amendment Effective Date;
(vii) after giving effect to this Amendment, no Potential Event of Default or Event of Default shall have occurred and be continuing; and
(viii) Company shall have paid (x) to Credit Suisse Securities (USA) LLC all fees set forth in the Engagement Letter, dated as of November 4, 2015, between Company and Credit Suisse Securities (USA) LLC within the time periods specified therein, (y) to the Administrative Agent, for the ratable account of each Lender that shall have executed this Amendment on or prior to 12:00 p.m. (New York time) on December 21, 2015, an amendment fee of (1) 5.00% of the sum of the outstanding aggregate principal amount of such Lenders’ Revolving Loan Commitments and (2) 5.00% of the sum of the aggregate outstanding principal amount of such Lenders’ Term Loans, in each case, as of the Third Amendment Effective Date, and (z) to the Administrative Agent for the account of the Administrative Agent all reasonable fees, expenses and other amounts payable to the Administrative Agent in connection with this Amendment (including, without limitation, the PATRIOT Act all reasonable legal fees and expenses of White & Case LLP, counsel to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior an invoice has been provided to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender Company prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Third Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date).
Appears in 1 contract
Sources: Credit Agreement (Alliance HealthCare Services, Inc)
Conditions Precedent to Effectiveness. 4.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are at Section 1 hereof is subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions (on the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):hereof:
(a) The prior or substantially simultaneous satisfaction Company, the Guarantors, the Requisite Lenders, the Administrative Agent and the Collateral Monitoring Agent shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent.
(b) The Specified LSP Acquisition As of the Second Amendment Effective Date (and after giving effect to this Second Amendment), the representations and warranties contained herein and in the other Credit Documents shall be consummated substantially concurrently with the effectiveness of this Amendment true, correct and complete in accordance with the terms all material respects on and as of the Specified LSP Acquisition Agreement (Second Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in effect on the first date of execution thereof), which case such representations and such Specified LSP Acquisition Agreement warranties shall not have been amendedtrue, supplemented or modified correct and complete in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any all material respects on and as of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)earlier date.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation As of the Specified LSP Acquisition and the effectiveness of Second Amendment Effective Date, after giving effect to this Second Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions no event shall have occurred and be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification continuing that would be materially adverse to the interests constitute an Event of the Lenders Default or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)a Default.
(d) The Administrative Agent’s receipt of the followingAgent shall have received, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party for distribution to the extent that a Loan Party is a party thereto, each dated the effective date of all Lenders executing this Amendment and each in form and substance satisfactory on or prior to 5:00 p.m. Eastern time on April 14, 2003, whether or not the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Second Amendment Effective Date certifying that no Event shall have occurred prior to such date, an amendment fee equal to 0.50% of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both such Lenders' outstanding Commitments immediately before and immediately after giving effect prior to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Second Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent Company shall have received, at least 3 business days prior reimbursed or paid to the Fourth Amendment Effective DateCollateral Monitoring Agent and its outside counsel, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, all documentation reasonable and other information required by regulatory authorities under applicable “know your customer” documented costs, fees, and anti-money laundering rules and regulations, expenses (including, without limitation, legal fees and expenses) incurred by the PATRIOT Act Collateral Monitoring Agent and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable its outside counsel in connection with the preparation, review and negotiation of this Second Amendment as of and the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agenttransactions contemplated hereby, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel invoiced to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCompany.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Revolving Credit Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Existing Revolving Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among United States Cellular Corporation, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among Telephone and Data Systems, Inc., the lenders party thereto and Export Development Canada, as a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Senior Term Loan Credit Agreement (United States Cellular Corp)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of This Joinder shall not be effective until each of the following conditions (precedent has been fulfilled to the date reasonable satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Canadian Agent and the Agents:
(a) The prior or substantially simultaneous satisfaction of This Joinder shall have been duly executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;respective parties hereto.
(b) The Specified LSP Acquisition New [Borrower/Guarantor] shall be consummated substantially concurrently with have delivered the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse following to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Canadian Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable satisfactory to the Administrative Canadian Agent and the Specified LSP Indebtedness Agents:
(i) Copies of the New [Borrower’s/Guarantor’s] Organization Documents.
(ii) Certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the New [Borrower/Guarantor] evidencing (A) the authority of the New [Borrower/Guarantor] to enter into this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party.
(iii) Certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from the New [Borrower/Guarantor]’s jurisdiction of organization.
(iv) Certificates of good standing (where applicable or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from each jurisdiction where the New [Borrower’s/Guarantor’s] ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not be reasonably expected to have a Material Adverse Effect.
(v) A Perfection Certificate.
(vi) Execution and delivery by the New [Borrower/Guarantor] of the following Loan Documents:
a) [In the case of a New Borrower, Joinders to the Canadian Note and the Canadian Swing Line Note, as applicable];
b) [A General Security Agreement, Deed of Hypothec (if applicable) and each of the other Canadian Security Documents];
c) [If the New [Borrower/Guarantor] maintains Blocked Account(s), Blocked Account Agreement(s) with ];
d) [In the case of a New Guarantor, a Facility Guaranty]; and
e) To the extent required by the Loan Documents, such other documents and agreements as the Canadian Agent or any of the Agents may reasonably require.
(c) Upon the request of the Canadian Agent, the Canadian Agent shall have received a customary written legal opinion of the New [Borrower/Guarantor]’s Canadian counsel, addressed to the Canadian Agent and each Canadian Lender, covering such matters relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions contemplated thereby as the Canadian Agent may reasonably request.
(d) To the extent required by the Loan Documents, the Canadian Agent shall have received all documents and instruments, including PPSA financing statements and other like filings and Blocked Account Agreements, required by applicable Laws or reasonably requested by the Canadian Agent or any Agent to create or perfect the Liens intended to be created under any Canadian Security Document and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Canadian Agent and the Agents.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers New [Borrower/Guarantor] shall have paid in full all reasonable fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket feesexpenses incurred by the Canadian Agent and the Agents (including, charges without limitation, the reasonable and disbursements documented fees and expenses of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Canadian Agent and the Borrowing Agent will notify Agents) in connection with the Lenders preparation, negotiation, execution and delivery of the occurrence of the Fourth Amendment Effective Datethis Joinder and related documents.
Appears in 1 contract
Sources: Credit Agreement (Quiksilver Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are is subject to the satisfaction (or waiver) of each Borrower's payment to the Administrative Agent for the account of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31Lenders, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment ratably in accordance with the terms their respective Commitments, of the Specified LSP Acquisition Agreement (as in effect on the first date an amendment fee of execution thereof)$1,850,000, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or Borrower's payment to the Administrative Agent (in their respective capacities as such) without for the account of the Administrative Agent’s prior written consent , the Syndication Agent and the Documentation Agent of all accrued fees and expenses of such agents (such consent not to be unreasonably withheld, delayed as provided in Section 8.4 or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on Engagement Letter, including the first date accrued fees and disbursements of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory legal counsel to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests Syndication Agent and the Documentation Agent and of the Lenders or the Administrative Agent (in their respective capacities as such) without financial consultant to the Administrative Agent’s prior written consent (, provided that the fees and disbursements of such consent not financial consultant through the date hereof shall be limited to be unreasonably withheld, delayed or conditioned).
(d$75,000) The and to the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each Agreement (unless otherwise specified), in form and substance satisfactory to the Administrative Agent in its reasonable discretion and each in the number of originals requested by the Lenders party to this AmendmentAdministrative Agent:
(ia) Notes this Agreement, duly executed by each the Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notesand the Lenders;
(iib) a the Notes, duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iiic) a the Release of Claims, duly executed Security Agreement Supplement by each New Loan Party the Borrower and all requirements by the Guarantors named as such in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing definition of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions)"Guarantors" in Section 1.1;
(ivd) Guaranties, duly executed by the Guarantors named as such in the definition of "Guarantors" in Section 1.1;
(e) a certificate Borrowing Base Certificate as of September 30, 2000, duly executed by an Authorized Officer;
(f) a Collateral Valuation Certificate as of September 30, 2000, which shall assume that the Borrower has already complied with Section 3.4, duly executed by an Authorized Officer and showing a ratio of the Collateral Value to the Aggregate Commitment of at least 1.82 to 1.00;
(g) certificates of the appropriate Governmental Persons, dated reasonably near the Closing Date, certifying (A) that the articles of incorporation of each of the Loan Parties signed by a Responsible OfficerBorrower and the Guarantors, dated including all amendments thereto, attached to such certificates are correct and that such amendments are the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred only such amendments on file with such Governmental Person and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity that each of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization Borrower and the continued valid existence and Guarantors is in good standing to do business in the state of its organizationincorporation and, in the case of the Borrower, in California;
(vih) written opinion(sa certificate of the Chief Executive Officer or Chief Financial Officer, and the Secretary or an Assistant Secretary, of each of the Borrower and the Guarantors certifying (A) that there has been no amendment to such company's articles of incorporation since the date of the certification with respect thereto referred to in Section 3.1(g), (B) that such company is in good standing to do business in the state of its incorporation and in each other state where the nature of its business requires it to be qualified to do business, (C) that the copy of such company's bylaws attached to such certificate is correct and complete and that such bylaws are in full force and effect, (D) that the copy of resolutions of the Board of Directors of such company attached to such certificate, authorizing such company to enter into, deliver and perform its obligations under the Credit Documents to which such company is or is to be a party, is correct and complete and that such resolutions are in full force and effect, (E) that no proceeding has been commenced for the dissolution or liquidation of such company, (F) that the representations and warranties of such company contained in the Credit Documents are correct on and as of the Closing Date as though made on and as of such date and (G) that no Default has occurred and is continuing;
(i) a certificate of the Secretary or an Assistant Secretary of each of the Borrower and the Guarantors certifying as to the incumbency, and setting forth a specimen signature, of each of the persons who has signed or will sign any Credit Document on behalf of such company;
(j) one or more favorable opinions of legal counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent Borrower and the Lenders and in form and substance satisfactory Guarantors as to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that such matters as any Lender through the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been takenreasonably request; provided that to the extent and
(k) such other approvals, opinions, evidence and documents as any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as Lender through the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentrequest.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments Prior to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of Restructuring Transactions, the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement following conditions precedent shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders satisfied: o The Term Loan Paydown and the Administrative Agent Repurchase shall have been consummated (in their respective capacities as such).
(c) All Specified LSP Indebtedness or shall be funded consummated substantially simultaneously concurrent with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions Restructuring Transactions). o The Restructured Loan Documentation shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse Lenders in their discretion (including specifically with respect to the interests relative rights of the Lenders or the Administrative Agent (in their respective capacities as suchholders of Term A Loans and Term B Loans) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt and duly executed copies of the following, each Restructured Loan Documentation shall have been delivered by the Credit Parties. o No default or event of which default shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor exist under the Credit Agreement and the other Restructured Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately Documentation before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
Restructuring Transactions, except for (v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (Bi) the names, authority defaults or events of default that constitute the Specified Forbearance Items under and capacity of the Responsible Officers authorized as defined in that certain Fourth Forbearance Agreement and Amendment No. 1 to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, Credit Agreement dated as of the Fourth Amendment Effective DateMay 7, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A.2009, as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsamended, including, without limitation, as amended by that certain Letter Agreement dated as of June 5, 2009, in each case, by and among the PATRIOT Act and to the extent required therebyCompany, the Beneficial Ownership RegulationGuarantors, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers Agent and the lenders party thereto, which shall have paid in full all fees payable in connection be waived concurrently with this Amendment as the execution of the Fourth Amendment Effective Date.
Restructured Loan Documentation, and (gii) Unless any other default or event of default that is waived by the Administrative AgentLenders in writing in their discretion concurrently with the execution of the Restructured Loan Documentation. o The representations and warranties of each Credit Party under the Restructured Loan Documentation shall be true and correct in all material respects immediately prior to, and after giving effect to, the Borrowers shall have paid all reasonable and documented out-of-pocket feeseffectiveness of the Restructuring Transactions, charges and disbursements of counsel to the Administrative Agent except (directly to such counsel if requested by the Administrative Agenti) to the extent invoiced prior any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or on the date of this Amendment, plus such additional amounts warranty shall be true and correct in all material respects as of such feesdate, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior true and correct in all respects, subject to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to materiality qualification contained therein. o No material adverse change since December 31, 2024. The Administrative Agent and 2008 with respect to (a) the Borrowing Agent will notify business, assets, property, condition (financial or other), results of operations or prospects of the Borrower or the Guarantors (taken as a whole), (b) the validity or enforceability of any of the Restructured Loan Documentation or the rights or remedies of the Agent, the Lenders or the other secured parties thereunder, or (c) the validity, perfection or priority of the occurrence liens upon the Collateral in favor of the Fourth Amendment Effective DateAgent for the benefit of the secured parties, shall have occurred.
Appears in 1 contract
Sources: Credit Agreement (Haights Cross Communications Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent has been fulfilled to the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as Administrative Agent:
a. This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
b. The Agent shall have received evidence acceptable to it that all action on the extent provided therein) and the occurrence part of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with Loan Parties necessary for the effectiveness valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken.
c. All necessary consents and approvals to this Amendment shall have been obtained. Exhibit 10.1 Executed Version
d. The Administrative Agent shall have received a long form good standing certificate (or equivalent thereto, in accordance with the terms case of the Specified LSP Acquisition Agreement (as in effect on the first date UK Borrower) for each Loan Party from its respective jurisdiction of execution thereof)organization, and such Specified LSP Acquisition Agreement which good standing certificate shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), be certified by the Borrowing Agent or any applicable Governmental Authority as of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)a recent date.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition e. Prior to and the effectiveness of immediately after giving effect to this Amendment, subject no Default or Event of Default shall have occurred and be continuing.
f. Prior to and immediately after giving effect to this Amendment, (i) each of the conditions precedent thereto representations and warranties of the Loan Parties contained in the documentation therefor (which conditions shall be consistent Credit Agreement, any other Loan Document or in any document or instrument delivered pursuant to or in connection with customary “limited conditionality” provisions the Loan Documents or this Amendment, are true and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests correct on and as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory (except to the Administrative Agent extent that such representations and each warranties specifically refer to an earlier date, in which case they are true and correct as of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingsuch earlier date), if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
and (ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office no Default or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect exists on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agenthereof.
(e) g. The Administrative Agent shall have received, at least 3 business days prior to for the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitationsole benefit of Comerica Bank, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested amendment fee described in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateSection 4 below.
(f) h. The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable Lenders and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice payment from such Lender prior the Borrower of all costs and expenses required to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition paid pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. Section 5 of this Amendment.
i. The Administrative Agent shall have received such other documents, instruments and agreements as it may reasonably request, each in form and substance reasonably satisfactory to the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateAdministrative Agent.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Second Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth This Second Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), duly executed and delivered by the Borrowing Agent or any of its SubsidiariesBorrowers, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Revolving Credit Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness other parties hereto, and shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition in full force and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions effect and shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each the Revolving Credit Lenders.
(b) All action on the part of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingBorrowers necessary for the valid execution, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder delivery and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date performance by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization Borrowers of this Second Amendment shall have been duly and the continued valid existence effectively taken and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed evidence thereof satisfactory to the Administrative Agent and the Lenders and in form and substance satisfactory shall have been provided to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(ec) The Administrative Agent shall have receivedAll documents, at least 3 business days prior to instruments and agreements in connection with the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsTerm Loans, including, without limitation, a Second Amendment to Financing Agreement extending the PATRIOT Act maturity date of the Term Loans to June 11, 2006, as may be deemed necessary by the Administrative Agent shall have been duly executed and to delivered by the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateBorrowers.
(fd) The Borrowers shall have paid to the Administrative Agent an amendment fee (the "AMENDMENT FEE") in an amount equal to 0.125% of the Revolving Credit Ceiling ($437,500.00). The Amendment Fee shall be fully earned and payable by the Borrowers to the Administrative Agent, for its account and for the account of the other Exhibit 10.1 Revolving Credit Lenders, in full all fees payable on the date of this Second Amendment. The Amendment Fee shall not be subject to refund or rebate under any circumstances.
(e) All costs and expenses incurred by the Agent in connection with the preparation and negotiation of this Second Amendment as and related documents (including the fees and expenses of counsel to the Fourth Amendment Effective DateAgent) shall have been paid in full.
(f) No Default or Event of Default shall be then occurring.
(g) Unless waived The Borrowers shall have executed and delivered to the Administrative Agent such other documents, instruments, and agreements as may be reasonably required by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment the amendment and the amendments to restatement of the Existing Credit Agreement set forth herein are pursuant to Section 4 of this Agreement shall be subject to the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior Agent (or substantially simultaneous satisfaction its counsel) shall have received from each of the conditions set forth in Section 3 Borrower, the Parent, the Required Lenders under (and as defined in) the Existing Credit Agreement and each of the Lenders either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the extent provided thereinAgent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) and the occurrence that such party has signed a counterpart of the Fourth Amendment Closing Date;this Agreement.
(b) The Specified LSP Acquisition Agent (or its counsel) shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms have received from each Subsidiary, if any, that is a Subsidiary Loan Party as of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Restatement Effective Date, and such Specified LSP Acquisition Agreement shall is not have been amendedalready a Guarantor, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse a supplement to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldGuarantee Agreement, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect form specified therein, duly executed and delivered on the first date behalf of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)such Person.
(c) All Specified LSP Indebtedness The Agent shall be funded substantially simultaneously with have received a favorable written opinion (addressed to the consummation Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Specified LSP Acquisition and the effectiveness of this AmendmentBorrower, subject (ii) Shearman & Sterling LLP, counsel to the conditions precedent thereto contained Loan Parties, and (iii) if reasonably requested by the Agent, local counsel in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions Luxembourg, Brazil and Scotland, in each case, in form and substance reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or and in each case covering such other modification that would be materially adverse matters relating to the interests of Loan Parties, the Lenders Loan Documents or the Administrative Restatement Transactions as the Agent (in their respective capacities as such) without or the Administrative Agent’s prior written consent (Required Lenders shall reasonably request. The Parent and the Borrower hereby request such consent not counsel to be unreasonably withheld, delayed or conditioned)deliver such opinions.
(d) The Administrative Agent’s receipt Agent shall have received such documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer Loan Parties and the authorization of the signing Loan Party Restatement Transactions and any other legal matters relating to the extent that a Loan Party is a party theretoParties, each dated the effective date of this Amendment and each Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentcounsel.
(e) The Administrative representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects as of the Restatement Effective Date, no Default shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have receivedreceived a certificate, at least 3 business days dated the Restatement Effective Date and signed by the President & Chief Executive Officer, an Executive Vice President or a Financial Officer of each of the Parent and the Borrower, confirming the foregoing.
(f) The Agent shall have received (i) all fees and other amounts due and payable on or prior to the Fourth Amendment Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan Documents and (ii) an amount sufficient to prepay all Loans outstanding under (and as defined in) the Existing Credit Agreement and to pay all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees owing to the Existing Lenders under paragraphs (a) and (b) of Section 2.11 of the Existing Credit Agreement. If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(g) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateAct.
(fh) The Borrowers Agent shall have paid in full all fees payable in connection with this Amendment as received an updated Perfection Schedule (which shall include such information required pursuant to Section 5.10(b) of the Fourth Amendment Amended Credit Agreement), dated the Restatement Effective DateDate and attached as Schedule 3.02 to the Collateral Agreement delivered pursuant to Section 6(i).
(gi) Unless waived The Agent (or its counsel) shall have received counterparts of amendments and restatements of each of the Collateral Agreement and the Guarantee Agreement as shall be necessary or (in the opinion of the Agent) appropriate in order for (i) the Secured Obligations under the Amended Credit Agreement to be secured under the Collateral Agreement and (ii) the Secured Obligations consisting of Secured Swap Obligations (under and as defined in the Collateral Agreement) to be guaranteed under the Guarantee Agreement, in each case reasonably satisfactory in form and substance to the Agent and its counsel and signed on behalf of the parties thereto.
(j) The Agent shall be satisfied that the Borrower shall have taken (or caused to be taken) such actions, including execution and delivery of such documents and certificates, as shall be necessary under the terms of the First Lien Intercreditor Agreement and the Senior Secured Notes Indenture in order for the Secured Obligations under the Amended Credit Agreement to be secured by the Administrative AgentSecurity Documents, as amended as described above.
(k) If any Borrowing is to be made under the Amended Credit Agreement on the Restatement Effective Date, the Borrowers Agent shall have paid all reasonable received prior notice thereof in accordance with the Amended Credit Agreement and documented out-of-pocket fees, charges and disbursements shall be satisfied that arrangements have been made for payment of counsel to break funding costs that would be required under Section 2.16 of the Administrative Agent (directly to Amended Credit Agreement if such counsel if requested by the Administrative Agent) to the extent invoiced prior to or borrowing is not made on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or requested to be incurred by it through made. The Agent shall notify the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality Lenders of the provisions of Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the last paragraph of Section 11.3 foregoing, the amendment and restatement of the Existing Credit Agreement, for purposes Agreement as contemplated hereby shall not become effective unless each of determining compliance with the foregoing conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved section is satisfied (or accepted waived) at or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to 5:00 p.m., New York City time, on the proposed Fourth Amendment Effective Termination Date specifying its objection thereto. The parties hereto understand and agree that (and, in the amendments to event such conditions are not so satisfied or waived, the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed remain in effect without giving effect to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation provisions of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datethis Agreement).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) The prior or substantially simultaneous satisfaction of This Amendment shall have been duly executed and delivered by the conditions set forth in Section 3 (as and to Borrower, the extent provided therein) Administrative Agent and the occurrence Required Lenders. The Administrative Agent shall have received a fully executed copy of the Fourth Amendment Closing Date;this Amendment.
(b) The Specified LSP Acquisition Immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)continuing.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of Immediately after giving effect to this Amendment, subject the representations and warranties made by each Loan Party in this Amendment, the Credit Agreement, as amended by this Amendment and the other Loan Documents to which it is a party (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the conditions precedent thereto contained extent any such representation and warranty expressly relates to an earlier date, in the documentation therefor which case such representation and warranty shall have been true and correct in all material respects (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent)or all respects, without any waiver, consent, amendment or other modification that would be materially adverse to the interests as applicable) as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)earlier date.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until all fees required to be paid pursuant to Section 5 below and (ii) all expenses for which invoices have been presented (including the Fourth reasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), to the extent provided in Section 10.5 of the Credit Agreement on or before the Third Amendment Effective Date. Each Lender party hereto (including SVB) and the Administrative Agent, (ii) by delivering its signature page to this Amendment, shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, have accepted or been satisfied with (iiior waived) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective each condition set forth in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024this Section 3. The Administrative Agent and the Borrowing Agent will shall notify the Lenders of the Third Amendment Effective Date upon the occurrence thereof, and such notice and the effectiveness of this Amendment shall be conclusive and binding upon all of the Fourth Lenders and all of the other parties to the Loan Documents and each of their successors and assigns; provided that, failure to give any such notice shall not affect the effectiveness, validity or enforceability of this Amendment. The parties hereto hereby agree that notwithstanding any other provision hereof, the Third Amendment Effective DateDate is April 25, 2024.
Appears in 1 contract
Sources: Credit Agreement (Accuray Inc)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall be effective as of this the Fourth Amendment Effective Date when (and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiveronly when) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent has been satisfied:
(a) The prior or substantially simultaneous satisfaction of Administrative Agent shall have received from the conditions set forth in Section 3 (as and to the extent provided therein) Credit Parties and the occurrence Lenders duly executed counterparts of the Fourth Amendment Closing Datethis Amendment;
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with have received from the effectiveness of this Amendment in accordance with Borrower an amendment fee equal to 0.25% multiplied by the terms aggregate Revolving Credit Commitments of the Specified LSP Acquisition Agreement Lenders, such fee being for the account of each such Lender pro rata according to such Lender's Revolving Credit Commitment as of the Fourth Amendment Effective Date (as it being understood that such fee is in effect on addition to the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), amendment fee previously paid by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse Borrower to the interests Administrative Agent for the benefit of the Lenders or consenting to the June 2002 Amendment, upon the closing of the June 2002 Amendment);
(c) The Credit Parties shall have paid any and all out-of-pocket costs (to the extent invoiced) incurred by the Administrative Agent (in their respective capacities as such) without including the reasonable fees and expenses of the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned's legal counsel), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders fees and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory other amounts payable to the Administrative Agent), without any waiverin each case in connection with the arrangement, consentnegotiation, amendment or other modification that would be materially adverse to the interests preparation, execution and delivery of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).this Amendment;
(d) The Administrative Agent’s receipt Agent shall have received (i) from the Credit Parties, duly executed counterparts of the following, each of which shall be originals or telecopies Security Agreement and (followed promptly by originalsii) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party from counsel to the extent that Credit Parties, a Loan Party is a party thereto, each dated the effective date of this Amendment and each legal opinion in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and its counsel (which shall cover, among other things, the Specified LSP Indebtedness legality, validity, binding effect and enforceability of the Security Agreement and the creation and perfection of the Administrative Agent.'s Liens thereunder);
(e) The Administrative Agent shall have received, at least 3 business days prior received evidence satisfactory to it that the Borrower shall have obtained amendments to its guaranties in connection with the Premier Boxboard Credit Facility and the Standard Gypsum Credit Facility that conform to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.terms of this Amendment; and
(f) The Borrowers shall have paid representations and warranties contained in full all fees payable in connection with this Amendment as Section 26 of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from true and correct in all material respects on and as of such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior including after giving effect to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs JS Industrial Packaging Group Acquisition, but only if consummated on or prior to December 31, 2024. The Administrative Agent such date) with the same effect as if made on and the Borrowing Agent will notify the Lenders as of the occurrence of the Fourth Amendment Effective Datesuch date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the parties hereto. The prior or substantially simultaneous satisfaction Administrative Agent shall have received a fully executed copy hereof and of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;each other document required hereunder.
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently have received a collateral information certificate with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse respect to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)New Borrower.
(c) All Specified LSP Indebtedness necessary consents and approvals to this Amendment shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)have been obtained.
(d) The Merger shall have been consummated in accordance with applicable law and the NuTech Acquisition Agreement.
(e) All conditions to the consummation of the Merger set forth in the NuTech Acquisition Documentation shall have been satisfied or waived (in the case of waiver, to the extent such waiver would materially adversely affect the interests of the Lenders, without the prior written consent of the Administrative Agent’s receipt of the following, each of which ).
(f) The Administrative Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly have received a fully executed NuTech Acquisition Agreement certified by a Responsible Officer to be a true and complete copy of the signing Loan Party NuTech Acquisition Agreement.
(g) Prior to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party immediately after giving effect to this Amendment:, no Default or Event of Default shall have occurred and be continuing.
(ih) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder Prior to and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectivelyimmediately after giving effect to this Amendment, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) representations and each other New Loan Party as a Guarantor under warranties herein and in the Credit Agreement and the other Loan Documents;Documents shall be true and correct in all material respects on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date), in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date.
(iiii) The Administrative Agent shall have received the results of a duly executed Security Agreement Supplement by each New Loan Party and all requirements recent lien search in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties’ (including the Target’s) jurisdiction of organization and each of the jurisdictions where assets of the Loan Parties signed (including the Target) are located, and such searches shall reveal no liens on any of the assets of the Loan Parties (including the Target) except for liens permitted by a Responsible Officer, dated Section 7.3 of the Fourth Credit Agreement or discharged on or prior to the First Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect pursuant to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed documentation satisfactory to the Administrative Agent Agent.
(j) All documents and items required to be delivered pursuant to Section 6.12(c) of the Lenders Credit Agreement shall have been delivered, executed, or recorded with respect to the New Borrower and shall be in form and substance satisfactory to the Administrative Agent;, in its sole discretion.
(viik) evidence that all other actionsThe Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, recordings and filings that counsel to the Borrower, in a form reasonably satisfactory to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that Agent. Such legal opinion shall cover such other matters incident to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required transactions contemplated by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time this Agreement as the Administrative Agent may agreereasonably require.
(l) after The Administrative Agent shall have received original copies of (i) a pledge supplement executed by the Fourth Amendment Effective Date Existing Borrower pledging the shares of stock of the New Borrower, (as ii) the certificates, if any, representing the shares of Capital Stock pledged pursuant to such date may be extended pledge supplement and the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and (iii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement, endorsed (without recourse) in its sole discretionblank (or accompanied by an executed transfer form in blank) and (y) by the date of provision thereof with respect to any Specified LSP Indebtedness; andpledgor thereof.
(viiim) a duly executed Applicable Intercreditor Agreement between the The Administrative Agent and Bank shall have received (i) an officer’s certificate of Americaeach Loan Party (including the New Borrower), N.A., dated as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, of the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth First Amendment Effective Date, with appropriate insertions and acknowledged attachments, including resolutions authorizing the transactions contemplated hereby, the certificate of formation of the New Borrower certified by the relevant authority of the jurisdiction of organization of the New Borrower, the operating agreement or other similar organizational document of the New Borrower and the relevant resolutions or written consents of the sole member of the New Borrower, and (ii) a certificate of status of the New Borrower from its jurisdiction of organization.
(n) The Administrative Agent shall have received a solvency certificate from the chief financial officer or treasurer of the Borrower certifying that the Loan Parties, in form as of the First Amendment Effective Date, when taken as a whole after giving effect to the consummation of the Merger are Solvent.
(o) The Lenders and substance reasonably acceptable to the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the Specified LSP Indebtedness Agentreasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), on or before the First Amendment Effective Date.
(ep) The Administrative Agent shall have received, at least 3 business days prior to the Fourth First Amendment Effective Date, all documentation and other information required by regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DatePatriot Act.
(fq) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to evidence of insurance certificates and policy endorsements satisfying the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (irequirements of Section 5.2(b) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant Guarantee and Collateral Agreement with respect to each Loan Party (including the Specified LSP Acquisition Agreement and Target).
(ivr) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent shall have received a Trademark Security Agreement executed by the New Borrower, if applicable.
(s) The Administrative Agent shall have received a Patent Security Agreement executed by the New Borrower, if applicable.
(t) The Administrative Agent shall have received a Copyright Security Agreement executed by the New Borrower, if applicable.
(u) Delivery of subordination agreements, in form and substance acceptable to the Administrative Agent, in respect of all Indebtedness owed by the New Borrower to any Seller, shareholder, officer or director of the New Borrower.
(v) The Administrative Agent shall have received updated schedules to the Credit Agreement and the Borrowing Agent will notify Guarantee and Collateral Agreement.
(w) All other documents and legal matters in connection with the Lenders of transactions contemplated by this Amendment shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the occurrence of the Fourth Amendment Effective DateAdministrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness An Eligible Property that has been approved pursuant to Section 5.1(b)(ii) shall be included in the calculation of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to Borrowing Base Availability as a Borrowing Base Property upon the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(iA) Notes duly executed if the Eligible Property is not owned by an existing Subsidiary Guarantor, a joinder or accession agreement to the Guaranty, pursuant to which the Person that owns such Eligible Property (and each Borrower (including, if applicable, any New Borrowers (as defined below)other direct or indirect owner of such new Subsidiary Guarantor that is a Subsidiary of the Borrower) in favor of each Lender requesting Notesbecomes a Subsidiary Guarantor;
(iiB) a duly Pledge and Security Agreement or joinder thereto, in form and substance reasonably satisfactory to the Administrative Agent, reflecting the pledge of Equity Interests by the Borrower in each such new Subsidiary Guarantor as additional Collateral, together with, to the extent requested by the Administrative Agent, certificates and instruments representing the Equity Interests of each such new Subsidiary Guarantor, pledged as Collateral pursuant to the applicable Pledge and Security Agreement, accompanied by undated stock powers or instruments of transfer executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documentsin blank;
(iiiC) a duly executed Security Agreement Supplement by Mortgage securing the Obligations (it being acknowledged that certain Mortgages, with the approval of the Administrative Agent, may provide for a limitation on the principal amount of the Loans and Commitments secured thereby to an amount equal to 110% of the Borrowing Base Property Value of the Eligible Property to which such Mortgage relates);
(D) an Environmental Indemnity in form and substance reasonably satisfactory to the Administrative Agent;
(E) an Assignment of Leases and Rents and Assignment of Licenses, Permits and Contracts, each New Loan Party in form and substance reasonably satisfactory to the Administrative Agent, as collateral security for the Obligations of the Borrowers, provided that at the discretion of the Administrative Agent, any such Assignment of Leases and Rents and/or Assignment of Licenses, Permits and Contracts may be contained within the applicable Mortgage rather than in a separate document;
(F) the transfer of the “landlord’s” or “lessor’s” interest in all Leases with respect to such Eligible Property shall have been consummated in accordance with the terms of each thereof and all requirements such Leases shall name the applicable Subsidiary Guarantor as “landlord” or “lessor” thereunder, whether by amendment, assignment or otherwise, subject only to the consent or approval of the Federal Agency tenant under such Leases (which consent or approval the Loan Parties shall use commercially reasonable and diligent efforts to obtain promptly after the date such Real Estate Asset becomes an Eligible Property and in connection therewith any event within six (including lien searches6) months after such date (or such longer period approved by the Administrative Agent));
(G) the Property Management Agreement with respect to such Eligible Property and an Assignment and Subordination of Management Agreement in respect of the same (or other property management arrangement satisfactory to the Administrative Agent);
(H) UCC financing statements and fixture filings required by the Administrative Agent, any certificated equity in form and related powerssubstance reasonably satisfactory to the Administrative Agent;
(I) a title insurance policy, UCC filings and issued by a title insurance company reasonably acceptable to the Administrative Agent (or, as applicable, the filing delivery of shortapplicable title policy endorsements or a new title policy with tie-in or aggregation endorsements to existing title policies), insuring the lien of the Mortgage as a first lien on the Eligible Property and showing no exceptions to title unacceptable to Administrative Agent other than Eligible Property Permitted Liens and otherwise in form security agreements and substance, and with endorsements, satisfactory to the United States Patent Administrative Agent (and Trademark Office or the United States Copyright Office and related perfection actionsincluding copies of all exception documents);
(ivJ) a certificate current Statement of each of the Loan Parties signed by a Responsible OfficerLease with respect to such Real Estate Asset, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Dateand, to the extent applicablerequested by the Administrative Agent, certified as of the Loan Parties shall use commercially reasonable and diligent efforts to obtain an SNDA within a sufficiently recent date prior time period satisfactory to the Fourth Amendment Effective Date by Administrative Agent after such Real Estate Asset becomes an Eligible Property hereunder, each in form and substance reasonably satisfactory to the appropriate state official where Administrative Agent, with respect to each tenant of such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organizationEligible Property;
(viK) written opinion(swith respect to any Eligible Property already owned by a new Subsidiary Guarantor, a copy of the Novation Agreements with each applicable Federal Agency or to the extent such Eligible Property is being acquired, any pre-novation assurance letters obtained by the applicable Subsidiary Guarantor, it being agreed that such Subsidiary Guarantor will request such assurance letters from each Federal Agency tenant (to be followed by the applicable Novation Letters following such Real Estate Asset becoming an Eligible Property hereunder within a time period satisfactory to the Administrative Agent);
(L) a perfection certificate and/or supplements to any existing perfection certificates with respect to each such Eligible Property;
(M) an opinion of counsel for (including local counsel, as required by the New Loan Parties, dated as of Administrative Agent) to the Fourth Amendment Effective Datenew Subsidiary Guarantor, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent, in the jurisdiction in which such new Subsidiary Guarantor is organized and an opinion of local counsel admitted to practice in the jurisdiction in which such Eligible Property is located, in each case unless waived by the Administrative Agent;
(viiN) evidence the deliverables described in Sections 6.1(a)(x) through (xiii) with respect to the new Subsidiary Guarantor unless any such item is waived by the Administrative Agent;
(O) a Borrowing Base Certificate calculated as of the end of the then most recently ended Reference Period for which a Borrowing Base Certificate has been delivered pursuant to Section 9.4 (giving pro forma effect to the addition of such Eligible Property as a Borrowing Base Property and any other Borrowing Base Properties added since the end of such Reference Period);
(P) a certificate signed by a Responsible Officer of the Borrower, certifying the following as of the effective date of such Borrowing Base Property Request approval, both immediately before and immediately after giving effect thereto: (1) that all other actionsno Default or Event of Default exists, recordings and filings (2) that the Administrative Agent may deem necessary representations and warranties made or desirable deemed made by each Loan Party in order to perfect the Liens created under the Loan Documents have been taken; provided that to which it is a party are true and correct in all material respects (or in all respects to the extent any that such actionsrepresentations and warranties are already subject to concepts of materiality) on and as of such date with the same force and effect as if made on and as of such date, recordings or filings is required under except to the terms extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date), (3) that such Eligible Property satisfies the requirements of an “Eligible Property” set forth in the definition thereof and (4) that all of the Specified LSP Indebtedness but is not required financial covenants set forth in this Agreement have been satisfied (setting forth calculations demonstrating such compliance);
(Q) Lien search results (consistent with Section 6.01(a)(xv)), to the extent requested by the terms of the Specified LSP Indebtedness Administrative Agent;
(R) any fees payable to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) connection with such Borrowing Base Property Request (including the reasonable fees, charges and (y) the date disbursements of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable outside counsel to the Administrative Agent and the Specified LSP Indebtedness Agent.);
(eS) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding USA PATRIOT Act, without limitation, the PATRIOT Act and including any SS4 to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, a properly completed and signed IRS Form W-8 or W-9, as applicable, and the Borrowers shall have paid all reasonable Certification of Beneficial Ownership for each such new Subsidiary Guarantor (together with an updated organizational structure chart);
(T) evidence that no portion of the Eligible Property is located in an area designated by the Secretary of Housing and documented out-of-pocket feesUrban Development as a special flood hazard area, charges or, if any such Eligible Property is located in such an area, unless the improvements located on such Eligible Property are excluded from the applicable Mortgage (as determined by the Administrative Agent in its sole discretion), flood hazard insurance acceptable to Administrative Agent and disbursements each Lender in its sole discretion;
(U) evidence that the Subsidiary Guarantor that is the owner of counsel such Eligible Property has opened its operating account with the Administrative Agent or a Lender;
(V) certificates of insurance and endorsements and other evidence reasonably satisfactory to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in insurance requirements of this Section 4Agreement; and
(W) such other documents, each Lender that has signed this Amendment shall be deemed agreements and instruments related to have consented to, approved the approval or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless denial of the Borrowing Base Property Request as the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation behalf of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datemay reasonably request.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) obligation of each Lender to make Loans hereunder shall become effective on and as of the date (the “Effective Date”) on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent shall have been satisfied:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;There shall have occurred no Material Adverse Change since December 31, 2007.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Borrower or any of its SubsidiariesSubsidiaries pending or threatened before any court, if such amendmentgovernmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) is initiated by any Person other than a Lender in its capacity as a Lender that purports to affect the legality, supplementation, modification, waiver validity or consent would be materially adverse to enforceability of this Agreement or any Note or the interests consummation of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained applicable in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)transactions contemplated hereby.
(d) The Borrower shall have paid all invoiced fees and expenses of the Administrative Agent and the Lenders (including the invoiced fees and expenses of counsel to the Administrative Agent’s receipt ).
(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) Between December 31, 2007 and the Effective Date, there has been no Material Adverse Change,
(ii) There is no pending or (to the knowledge of the Borrower) threatened action or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect,
(iii) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(iv) No event has occurred and is continuing that constitutes a Default.
(f) The Administrative Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each Effective Date, in form and substance satisfactory to the Administrative Agent and (except for Notes) in sufficient copies for each of the Lenders party to this AmendmentLender:
(i) The Notes duly executed to the order of the Lenders to the extent requested by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;pursuant to Section 2.14.
(ii) a duly executed Guarantor Joinder and joinder agreement Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit this Agreement and the execution and delivery of this Agreement and the Notes, if any, and of all documents evidencing other Loan Documents;necessary partnership action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searchesthe Notes, any certificated equity if any, and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate of each A favorable opinion of the Loan Parties signed by a Responsible OfficerVice President and General Counsel or Vice President and Deputy General Counsel for the Borrower, dated covering the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred matters set forth in connection therewith;Exhibit D hereto.
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer A favorable opinion of each Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New Loan PartyYork counsel to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, certifying Inc., in its capacity as appropriate as to: (A) all action taken by such Loan Party to validly authorizeAdministrative Agent, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;.
(viig) evidence that all other actions, recordings and filings that the The Administrative Agent may deem necessary shall have received on or desirable in order to perfect before the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent financial statements described in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesSection 4.01(e), in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Verizon Communications Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments obligations of the 2019-B Incremental Lenders to provide the Existing Credit Agreement set forth herein 2019-B Term Loans are subject to the satisfaction (or waiver) waiver in accordance with Section 12.12 of each the Credit Agreement, prior or concurrently with the making of such 2019-B Term Loans, of the following conditions precedent (the date upon satisfaction or waiver of such satisfaction conditions, such date being referred to herein as the “Fourth Second Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Administrative Agent (or any of its affiliates) and the Borrower to be due and payable on or prior to the Second Amendment Effective Date in the amounts and at the times so specified, including the payment of the Upfront Fee and reimbursement or payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Administrative Agent and Lenders, taken as a whole) required to be reimbursed or paid by any Loan Party under any letter agreement previously entered into among UBS Securities LLC and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the Second Amendment Effective Date.
(ii) The representations and warranties set forth in Section 5 of this Amendment and Article V of the Credit Agreement shall be true and correct in all material respects on and as of the Second Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
(iii) The Administrative Agent and the 2019-B Incremental Lender shall have received, at least 3 business days three Business Days (or such shorter period as otherwise agreed) prior to the Fourth Second Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the Second Amendment Effective Date by the Administrative Agent and such 2019-B Incremental Lenders that they reasonably determine is required by regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the PATRIOT Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateBorrower.
(fiv) The Borrowers Administrative Agent shall have paid in full all fees payable in connection with this Amendment as received, a legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Fourth Amendment Effective Date.
Loan Parties and (gy) Unless waived by Stanley, Esrey & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall be addressed to the Administrative Agent, the Borrowers Collateral Agent and the Lenders, dated as of the Second Amendment Effective Date and shall have paid all reasonable be in form and documented out-of-pocket fees, charges and disbursements of counsel substance reasonably satisfactory to the Administrative Agent Agent.
(directly to such counsel if requested by the Administrative Agentv) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender prior to a counterpart signature page of this Amendment, executed and delivered by the proposed Fourth Borrower, Holdings, each Subsidiary Guarantor, the Administrative Agent, the 2019-B Incremental Lenders and the Lenders constituting the Required Lenders.
(vi) The Administrative Agent shall have received a certificate of each Loan Party, dated the Second Amendment Effective Date specifying its objection thereto. The parties hereto understand signed by the secretary or any assistant secretary of such Loan Party and agree that attested to by an Authorized Officer of such Loan Party, with the amendments to the Existing Credit Agreement set forth herein following insertions and attachments: (i) shall not become effective until certified organizational authorizations, incumbency certifications, the Fourth certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the Second Amendment Effective Date, Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
(vii) At the time of, and immediately after giving effect to, the Borrowing of 2019-B Term Loans and the use of proceeds thereof, no Default or Event of Default shall have occurred and be deemed to become effective on continuing or resulted therefrom.
(viii) The Administrative Agent shall have received a certificate, dated the Fourth Second Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofsigned on behalf of each of Borrower and Holdings, (iii) shall become effective as applicable, certifying on the Fourth Amendment Effective Date immediately prior to the consummation behalf of the Specified LSP Acquisition pursuant to Borrower and Holdings that the Specified LSP Acquisition Agreement conditions precedent set forth in paragraphs (ii) and (ivvii) shall not become effective in any event unless the Fourth Amendment Effective Date occurs of this Section 4 have been satisfied or waived on or prior to December 31, 2024. such date.
(ix) The Administrative Agent and shall have received a solvency certificate from the Borrowing Agent will notify the Lenders chief financial officer (or a similar Authorized Officer) of the occurrence Borrower and Holdings in the form of Exhibit J to the Fourth Amendment Effective DateCredit Agreement, which certifies that the Borrower and Holdings and its Restricted Subsidiaries, on a consolidated basis, are, and immediately after giving effect to the Incremental Transactions, will be, Solvent.
(x) The Administrative Agent shall have received a Notice of Borrowing with respect to the 2019-B Term Loans in the form hereto as Annex III.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Revolving Credit Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Existing Revolving Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021, among the U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as received payment of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented invoiced out-of-pocket fees and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent (directly to such in reasonable detail, and one local counsel if requested by in each relevant jurisdiction), in connection with the Administrative Agent) to the extent invoiced prior to or on the date preparation, negotiation, execution, delivery and administration of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality h) each of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified representations and warranties made in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented totrue and correct in all material respects (or, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date specifying its objection thereto. The parties hereto understand (as defined below), both before and agree that after giving effect to the amendments to contemplated by this Amendment as if such representations and warranties were being made on and as of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (iia) and (b) of Section 5.05 of the Credit Agreement shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior refer to the documentation effectuating any Specified LSP Indebtedness most recent statements furnished pursuant to subsections (a) and the funding thereof(b), (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation respectively, of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Senior Term Loan Credit Agreement (United States Cellular Corp)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective on the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Amendment Effective Date”) of each of on which all the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):are satisfied:
(a) The prior Administrative Agent (or substantially simultaneous satisfaction its counsel) shall have received from each party hereto, including Lenders constituting the “Required Lenders” under and as defined in the Existing Credit Agreement, a counterpart of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence this Amendment signed on behalf of the Fourth Amendment Closing Date;such party.
(b) The Specified LSP Acquisition Immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect continuing on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)Amendment Effective Date.
(c) All Specified LSP Indebtedness The representations and warranties contained in Section 3 of this Amendment and in Article 3 of the Existing Credit Agreement shall be funded substantially simultaneously with the consummation true and correct in all material respects on and as of the Specified LSP Acquisition date hereof, except that (i) for purposes of this Section 2(c), the representations and warranties contained in Section 3.04(a) of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a) or Section 5.01(b) of the Existing Credit Agreement (subject, in the case of unaudited financial statements furnished pursuant to Section 5.01(b) of the Existing Credit Agreement, to year-end audit adjustments and the effectiveness absence of this Amendmentfootnotes), subject (ii) to the conditions precedent thereto contained extent that such representations and warranties in Article 3 of the Existing Credit Agreement specifically refer to the “Effective Date” (as defined in the documentation therefor (which conditions Existing Credit Agreement), other than with respect to the Section 3.13, such references shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory deemed to refer to the Administrative Agent), without any waiver, consent, amendment or other modification that would Amendment Effective Date and shall be materially adverse true and correct in all material respects as of the Amendment Effective Date and (iii) to the interests extent that such representations and warranties are already qualified or modified by materiality or words of similar effect in the Lenders or the Administrative Agent (text thereof, they shall be true and correct in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)all respects.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder hereto and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender on or before the Amendment Effective Date payment of all expenses required to be reimbursed by the Borrower under the Loan Documents for which invoices have been presented at least one (1) Business Day prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment shall not be effective unless and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of until each of the following conditions precedent has been fulfilled to the satisfaction of or waived by the Administrative Agent (the date of such satisfaction being fulfillment or waiver, the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth This Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse duly executed and delivered to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without by the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldBorrower, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent Agent; ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.4
(b) As determined in their respective capacities as such).the Administrative Agent’s reasonable discretion, there has not been any Material Adverse Change;
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition The representations and the effectiveness warranties in Section 6 of this Amendment, subject to Section 7 of the conditions precedent thereto contained Credit Agreement and elsewhere in the documentation therefor (which conditions Loan Documents shall be consistent with customary “limited conditionality” provisions true, correct and reasonably satisfactory complete in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the Administrative Agent)text thereof, without any waiverand provided further that those representations and warranties expressly referring to a specific date shall be true, consent, amendment or other modification that would be materially adverse to the interests accurate and complete in all material respects as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).date;
(d) The Administrative Agent’s receipt of the following, each of which No Default shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has have occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewithbe continuing;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have receivedreceived such other documents, at least 3 business days prior to instruments and agreements as are reasonably requested by the Fourth Amendment Effective DateAdministrative Agent; and
(f) The Borrower shall have paid all costs, all documentation fees and other information required by regulatory authorities under applicable “know your customer” expenses of the Administrative Agent and anti-money laundering rules and regulations, Lenders (including, without limitation, the PATRIOT Act fees and to the extent required therebyexpenses of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, the Beneficial Ownership RegulationCuatrecasas, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, S.L.P., Chiomenti Studio Legale and Walkers (fBVI) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of outside counsel to the Administrative Agent (directly and the Lenders, and Shearman & Sterling LLP as outside counsel to such counsel if requested by the Administrative AgentAl-Rayyan Holding LLC) to the extent invoiced prior to or on incurred through the date of this Amendment, plus such additional amounts of such fees, charges and disbursements to the extent invoiced (or as shall constitute its reasonable to which a good faith estimate of such fees, charges and disbursements incurred or has been provided to be incurred by it through the closing proceedings Borrower) at least two (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender 2) Business Days prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation date of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datethis Amendment.
Appears in 1 contract
Sources: Credit Agreement and Guaranty (Establishment Labs Holdings Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and This Agreement shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of that the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction Borrower shall have paid all fees and expenses of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders payable hereunder and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms accrued as of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by including the Administrative Agent in its sole discretion) accrued fees and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements expenses of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to or on the date of this AmendmentEffective Date, plus such additional amounts of such fees, charges fees and disbursements expenses as shall constitute its a reasonable estimate of such fees, charges fees and disbursements expenses 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 Borrowers Borrower and the Administrative Agent). Without limiting ).
(b) On the generality of Effective Date, the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment following statements shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless true and the Administrative Agent shall have received notice for the account of each Lender a certificate signed by a duly authorized Responsible Officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 are correct in all material respects (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the Effective Date, before and after giving effect to the Borrowings to occur on the Effective Date and to the application of the proceeds therefrom, as though made on and as of such date except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been correct in all material respects (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of such earlier date (other than in the case of the representations and warranties made in Section 4.01(d), which shall be correct in all material respects on and as of the Effective Date as though made on and as of such date, without regard to any earlier date referenced therein); and
(ii) No event has occurred and is continuing, or would result from the Borrowing on the Effective Date, that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(i) Executed counterparts of this Agreement from all parties hereto.
(ii) If requested by a Lender, a Note payable to the order of such Lender, in a principal amount equal to each such Lender’s Commitment.
(iii) Certified copies of the resolutions of the Board of Directors (or committee thereof) of the Borrower and the Guarantor approving this Agreement, the Notes and the Guaranty to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Agreement, the Notes and each Guaranty.
(iv) A certificate of a Director, the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers or directors of such Loan Party authorized to sign the Loan Documents to which it is a party and the other documents to be delivered hereunder.
(v) The Parent Guaranty duly executed by the Parent.
(vi) An opinion of ▇▇▇▇▇▇ & Bird LLP, counsel for the Loan Parties, in substantially the form of Exhibit E attached hereto.
(vii) An opinion of ▇▇▇▇▇▇▇ (Bermuda) Limited, Bermuda counsel for the Parent, in substantially the form of Exhibit F attached hereto and to such other matters as any Lender through the Administrative Agent may reasonably request.
(viii) An acceptance of the appointment of the Process Agent (as such term is defined in Section 8.12) for the Parent.
(ix) A certificate signed by the chief financial officer of the Parent certifying the current Debt Ratings.
(x) an Advance Notice in accordance with the requirements hereof.
(d) Upon the reasonable request of any Lender made at least 10 days prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) the Borrower shall have provided to such Lender, and such Lender shall be deemed to become effective on reasonably satisfied with, the Fourth Amendment Effective Date immediately documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 5 days prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately and at least 5 days prior to the consummation of the Specified LSP Acquisition pursuant Effective Date, to the Specified LSP Acquisition Agreement and extent that the Borrower or the Parent qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Person shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower and/or the Parent, as applicable.
(ive) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent shall have received evidence that the Repurchase Agreement is in final form and all necessary steps that can be taken prior to the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Dateinitial Borrowings hereunder shall have been consummated.
Appears in 1 contract
Sources: Credit Agreement (Invesco Ltd.)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of This Joinder shall not be effective until each of the following conditions (precedent has been fulfilled to the date reasonable satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) The prior or substantially simultaneous satisfaction of This Joinder shall have been duly executed and delivered by the conditions set forth respective parties hereto, and shall be in Section 3 (as full force and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;effect.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with All action on the effectiveness part of the New [Borrower][Guarantor] and the other Loan Parties necessary for the valid execution, delivery and performance by the New [Borrower][Guarantor] and the other Loan Parties of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Joinder and all other documentation, instruments, and such Specified LSP Acquisition Agreement agreements to be executed in connection herewith shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse duly and effectively taken and evidence thereof reasonably satisfactory to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without shall have been provided to the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition The New [Borrower][Guarantor] (and the effectiveness of this Amendmenteach other Loan Party, subject to the conditions precedent thereto contained extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions form and substance reasonably satisfactory to the Administrative Agent):
(i) Certificate of Legal Existence and Good Standing, without any waiverif applicable, consentissued by the Secretary of the State of its incorporation or organization.
(ii) A certificate of an authorized officer of the due adoption, amendment or continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement, the Security Agreement and the other modification that would be materially adverse Loan Documents, and attesting to the interests true signatures of each Person authorized as a signatory to 4 Include only for joinders of guarantors. any of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldLoan Documents, delayed or conditioned)together with true and accurate copies of all Organization Documents.
(d) The Administrative Agent’s receipt Agent shall have received a written legal opinion of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date[Borrower][Guarantor]'s counsel, addressed to the Administrative Agent, the Collateral Agent and the Lenders and in form and substance satisfactory other Credit Parties, covering such matters relating to the Administrative Agent;
(vii) evidence that all other actionsNew [Borrower][Guarantor], recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to and/or the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time transactions contemplated thereby as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentrequest.
(e) The Administrative Collateral Agent shall have receivedreceived all documents and instruments, at least 3 business days prior including UCC financing statements and Blocked Account Agreements, required by Law or reasonably requested by the Administrative Agent or the Collateral Agent to create or perfect the Lien intended to be created under the Security Documents and all such documents and instruments shall have been so filed, registered or recorded to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, satisfaction of the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateAdministrative Agent.
(f) The Borrowers Administrative Agent shall have paid received evidence that all insurance policies and endorsements required under the Loan Documents (including, without limitation, lender's loss payable endorsements, additional insured endorsements and notice of cancellation endorsements) have been obtained and are in full all fees payable in connection effect, including with this Amendment as of respect to the Fourth Amendment Effective DateNew [Borrower][Guarantor].
(g) Unless waived All reasonable fees and Credit Party Expenses incurred by the Administrative Agent, Agents and the Borrowers shall have paid all other Credit Parties in connection with the preparation and negotiation of this Joinder and related documents (including the reasonable fees and documented out-of-pocket fees, charges and disbursements expenses of counsel to the Administrative Agent (directly to such counsel if requested Agents) shall have been paid in full by the Administrative AgentNew [Borrower] [Guarantor].
(h) The Loan Parties shall have executed and delivered to the extent invoiced prior to or on the date of this Amendment, plus Agents such additional amounts of such feesdocuments, charges instruments, and disbursements agreements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to or the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Collateral Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datemay reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 26, 2015 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with An executed copy of this Amendment as of the Fourth Amendment Effective DateAgreement from each party hereto.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentU.S. Cellular Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, dated as of December 9, 2021, among U.S. Cellular, Toronto Dominion (Texas) LLC as the administrative agent, and the Specified LSP Indebtedness lenders party thereto, which shall be in form and substance reasonably acceptable to the Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021, among U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as received payment of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented invoiced out-of-pocket fees and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent (directly to such in reasonable detail, and one local counsel if requested by in each relevant jurisdiction), in connection with the Administrative Agent) to the extent invoiced prior to or on the date preparation, negotiation, execution, delivery and administration of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality h) each of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified representations and warranties made in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented totrue and correct in all material respects (or, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date specifying its objection thereto. The parties hereto understand (as defined below), both before and agree that after giving effect to the amendments to contemplated by this Amendment as if such representations and warranties were being made on and as of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (iia) and (b) of Section 5.05 of the Credit Agreement shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior refer to the documentation effectuating any Specified LSP Indebtedness most recent statements furnished pursuant to subsections (a) and the funding thereof(b), (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation respectively, of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction of Borrower shall have notified each Lender and the conditions set forth Agent in Section 3 (writing as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing proposed Effective Date;.
(b) The Specified LSP Acquisition Borrower shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms have paid all accrued fees and expenses of the Specified LSP Acquisition Agreement Agent and the Lenders (as in effect on including the first date accrued fees and expenses of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse counsel to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness On the Effective Date, the following statements shall be funded substantially simultaneously with true and the consummation Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Specified LSP Acquisition Borrower, dated the Effective Date, stating that: (i) The representations and warranties contained in Section 4.01 are correct in all material respects (other than any representation or warranty qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the Effective Date, except to the extent any of such representations and warranties refers to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than any representation or warranty qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of such earlier date, and (ii) After giving effect to the incurrence of the Loans on the Effective Date and the effectiveness other transactions contemplated hereby, no event has occurred and is continuing that constitutes a Default or Event of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)Default.
(d) The Administrative Agent’s receipt of Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Partiesday, in form and substance reasonably acceptable satisfactory to the Administrative Agent Agent: (
i) Counterparts of this Agreement, duly executed and delivered by each of the Lenders, the Borrower and the Specified LSP Indebtedness Agent.
Agent (e) The Administrative or in the case of any such party as to which an executed counterpart shall not have been received, the Agent shall have received, at least 3 business days prior in form reasonably satisfactory to the Fourth Amendment Effective Dateit, all documentation and telecopy, email or other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as written confirmation from such party of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements its execution of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date a counterpart of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative AgentAgreement). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 29, 2012 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with An executed copy of this Amendment as of the Fourth Amendment Effective DateAgreement from each party hereto.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 26, 2020 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit This Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions (shall become effective on the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
which (a) The prior or substantially simultaneous satisfaction the Borrower has paid to the Agent, for the account of the conditions set forth in Section 3 Lenders, the up-front fees previously agreed to between the Borrower and the Lenders, (as b) the Borrower has paid all fees, costs and expenses due and payable pursuant to SECTIONS 9.6 and 10.13 (to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereofthen billed), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of Borrower has paid or will concurrently pay all principal, interest and fees outstanding under the Specified LSP Acquisition Prior Agreement and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory Borrower has furnished to the Administrative Agent and each of with sufficient copies for the Lenders party to this AmendmentLenders:
(i) Notes duly executed Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by each Borrower (including, if applicable, any New Borrowers (as defined below)) the appropriate governmental officer in favor its jurisdiction of each Lender requesting Notes;incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a duly executed Security Agreement Supplement party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);Borrower.
(iv) a certificate of each A certificate, signed by the chief financial officer of the Loan Parties signed by a Responsible OfficerBorrower, dated stating that on (x) the Fourth Amendment Effective Date certifying that Restatement Date, no Event of Default under Section 10.1(a), (f) or (g) Unmatured Default has occurred and is continuing both immediately before and immediately after giving effect (y) since December 31, 1999, no event has occurred which has had, or is reasonably likely to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;have, a Material Adverse Effect.
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity A written opinion of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective DateBorrower's counsel, addressed to the extent applicable, certified as Lenders in substantially the form of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;EXHIBIT C.
(vi) written opinion(sAny Notes requested by a Lender pursuant to SECTION 2.13(IV) payable to the order of counsel for each such requesting Lender.
(vii) Written money transfer instructions, in substantially the New Loan Parties, dated as form of the Fourth Amendment Effective DateEXHIBIT D, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all signed by an Authorized Officer, together with such other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time related money transfer authorizations as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; andhave reasonably requested.
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., Such other documents as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Dateor its counsel may have reasonably requested.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) The prior or substantially simultaneous satisfaction of This Amendment shall have been duly executed and delivered by the conditions set forth in Section 3 (as and to Borrower, the extent provided therein) Administrative Agent and the occurrence Required Lenders. The Administrative Agent shall have received a fully executed copy of the Fourth Amendment Closing Date;this Amendment.
(b) The Specified LSP Acquisition Immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)continuing.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of Immediately after giving effect to this Amendment, subject the representations and warranties made by each Loan Party in this Amendment, the Credit Agreement, as amended by this Amendment and the other Loan Documents to which it is a party (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the conditions precedent thereto contained extent any such representation and warranty expressly relates to an earlier date, in the documentation therefor which case such representation and warranty shall have been true and correct in all material respects (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent)or all respects, without any waiver, consent, amendment or other modification that would be materially adverse to the interests as applicable) as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)earlier date.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until all fees required to be paid pursuant to Section 5 below and (ii) all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document), to the extent provided in Section 10.5 of the Credit Agreement on or before the Fourth Amendment Effective Date. Each Lender party hereto (including SVB) and the Administrative Agent, (ii) by delivering its signature page to this Amendment, shall be deemed to become effective on have accepted or been satisfied with (or waived) each condition set forth in this Section 3. The Administrative Agent shall notify the Lenders of the Fourth Amendment Effective Date immediately prior upon the occurrence thereof, and such notice and the effectiveness of this Amendment shall be conclusive and binding upon all of the Lenders and all of the other parties to the documentation effectuating Loan Documents and each of their successors and assigns; provided that, failure to give any Specified LSP Indebtedness and such notice shall not affect the funding thereofeffectiveness, (iii) shall become effective on validity or enforceability of this Amendment. The parties hereto hereby agree that notwithstanding any other provision hereof, the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31is September 11, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Accuray Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on Administrative Agent or prior to December 31, 2024):waived by the Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent shall have received a fully executed copy hereof.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently All necessary consents and approvals required in connection with the effectiveness execution and performance of this Amendment in accordance with Amendment, and the terms consummation of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)transactions contemplated hereby, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)obtained.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of Immediately after giving effect to this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions no Default or Event of Default shall have occurred and be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)continuing.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date representations and warranties set forth in Section 5 of this Amendment shall be true and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect correct on the Fourth Third Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have receivedreceived (i) the Third Amendment Fee Letter, at least 3 business days prior duly executed and delivered by the Borrower, and (ii) all amounts required to be paid pursuant to the Fourth Third Amendment Fee Letter.
(f) The Administrative Agent shall have received the results of a recent lien search in each of the Loan Parties’ jurisdictions of organization and each other jurisdiction reasonably required by the Administrative Agent, and such searches shall reveal no Liens on any of the assets of the Loan Parties, except for Liens permitted by Section 7.3 of the Amended Credit Agreement.
(g) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated as of the Third Amendment Effective DateDate and executed by the Secretary, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsManaging Member or equivalent officer of such Loan Party, including, without limitation, substantially in the PATRIOT Act and form of Exhibit C to the extent required therebyAmended Credit Agreement, with appropriate insertions and attachments, including (A) the Beneficial Ownership RegulationOperating Documents of such Loan Party certified, that has in the case of formation documents, as of a recent date by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Third Amendment and the other Loan Documents to which such Loan Party is party, and (C) the names, titles, and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, (ii) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization, and (iii) certificates of foreign qualification from each jurisdiction where the failure of a Loan Party to be qualified could reasonably requested be expected to have a Material Adverse Effect.
(h) The Administrative Agent shall have received a Collateral Information Certificate substantially in writing by any Lender at least 5 business days prior the form of Exhibit J to the Fourth Amended Credit Agreement executed by the Borrower and dated as of the Third Amendment Effective Date.
(fi) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior the executed legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand Borrower, in form and agree that the amendments substance reasonably satisfactory to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateAgent.
Appears in 1 contract
Sources: Credit Agreement (Fastly, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective (the amendments to the Existing Credit Agreement set forth herein are subject to “Effective Date”) upon the satisfaction (or waiver) of each of the following conditions (precedent:
4.1 the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with the effectiveness have received counterparts of this Amendment in accordance with the terms executed and delivered on behalf of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Borrower, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:and acknowledged by each of the Guarantors;
(i) 4.2 the Administrative Agent shall have received Notes duly executed by each the Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) such a duly executed Guarantor Joinder and joinder agreement by LSPNote, ACE Aggregates, LLC, each in a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately principal amount equal to such Lender’s Commitment after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewiththis Amendment;
(v) a certificate dated 4.3 the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan PartyAdministrative Agent, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as benefit of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory Lenders, shall have received an opinion of counsel to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, Borrower in form and substance reasonably acceptable to the Administrative Agent and Agent;
4.4 a certificate of the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have receivedBorrower, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment dated as of the Fourth Amendment Effective Date.
(g) Unless waived date hereof, signed by a Responsible Officer of the Administrative Agent, the Borrowers shall have paid all reasonable Borrower and documented out-of-pocket fees, charges and disbursements of counsel delivered to the Administrative Agent (directly to such counsel if requested by i) certifying that the Administrative Agent) Borrower approves and consents to the extent invoiced prior extension of the Maturity Date to or on the date of this AmendmentAugust 12, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers 2012 and the Administrative Agent). Without limiting the generality increase of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed Aggregate Commitment from $75,000,000 to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date$100,000,000, (ii) shall be deemed certifying that there has been no change to become effective the Organization Documents of the Borrower since the delivery of the Borrower’s Organization Documents on October 11, 2006 in connection with the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofAmendment, (iii) shall become effective on attaching true and correct copies of resolutions adopted by the Fourth Borrower (a) approving and authorizing the execution of this Fifth Amendment Effective and (b) approving and consenting to such extension of the Maturity Date and such increase in the Aggregate Commitment, (iv) certifying that the Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business and (v) certifying that (a) immediately prior to the consummation and after giving effect to this Amendment, no Default or Event of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement Default exists or is continuing and (ivb) shall not become effective since the Closing Date, no event or events have occurred that, in the aggregate, could reasonably be expected to have a Material Adverse Effect; and
4.5 any event unless the Fourth Amendment Effective Date occurs fees required to be paid on or prior to December 31, 2024. The Administrative Agent and before the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datedate hereof shall have been paid.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit This Agreement set forth herein are subject to shall become effective solely upon the satisfaction (or waiver) of each of the following conditions precedent (the date upon satisfaction of such satisfaction conditions, such date being referred to in this Agreement as the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction Administrative Agent shall have received a counterpart signature page of this Agreement duly executed by each of the conditions set forth in Section 3 (as and to the extent provided therein) Loan Parties and the occurrence of Lenders party hereto constituting the Fourth Amendment Closing Date;Required Lenders.
(b) The Specified LSP Acquisition Borrower shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement have (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse i) paid an amendment fee to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent, for the account of each undersigned Lender who has executed and delivered its signature page to this Amendment on March 8, 2019, in an amount in cash equal to 1.00% of such Lender’s prior written consent Loans and Commitments on the Effective Date and (such consent not ii) reimbursed or paid all costs, expenses, fees and other amounts incurred by the Administrative Agent, the Arrangers and the Lenders in connection with this Agreement, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable costs, expenses, fees, charges and disbursements of counsel) required to be unreasonably withheld, delayed reimbursed or conditioned), it being understood and agreed that paid by any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)Loan Party under any Loan Document.
(c) All Specified LSP Indebtedness The representations and warranties set forth in Section 4 of this Agreement shall be funded substantially simultaneously with the consummation true and correct in all material respects on and as of the Specified LSP Acquisition and the effectiveness of this AmendmentEffective Date, subject except to the conditions precedent thereto contained in the documentation therefor (which conditions extent such representations and warranties expressly relate to an earlier date and except that such materiality qualifier shall not be consistent with customary “limited conditionality” provisions applicable to any representation and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification warranty that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)is already qualified by materiality.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent party hereto shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (including, for the avoidance of doubt, a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230).
(e) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Arrangers and the Lenders party hereto, a written opinion from each of (i) Cozen ▇’▇▇▇▇▇▇, California, Delaware, Massachusetts, New York and Texas counsel for the Borrower, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Nevada counsel to the extent required therebyLoan Parties, in each case, (A) dated as of the Effective Date, (B) addressed to the Administrative Agent, the Beneficial Ownership RegulationCollateral Agent, that has been the Arrangers and the Lenders party hereto, and (C) covering such matters relating to this Agreement and the other Loan Documents as the Administrative Agent shall reasonably requested in writing by any Lender at least 5 business days prior request, and the Borrower hereby requests such counsel to the Fourth Amendment Effective Datedeliver such opinions.
(f) The Borrowers Administrative Agent shall have paid in full all fees payable in connection with this Amendment received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Fourth Amendment Effective DateDate and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below (or in the alternative, a certification by such Loan Party as to no changes to the by-laws since the date of the last secretary’s certificate delivered to the Administrative Agent), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of such Loan Party authorizing the execution, delivery and performance of this Agreement 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, (C) that attached thereto is a copy of the certificate or articles of incorporation, 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 (or in the alternative, a certification by such Loan Party as to no changes to the certificate or articles of incorporation since the date of the last secretary’s certificate delivered to the Administrative Agent), and (D) as to the incumbency and specimen signature of each officer executing this Agreement, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; (iv) such other documents as the Administrative Agent may reasonably request, including customary lien and judgment searches with respect to each Loan Party (including the Company) and customary evidence of insurance coverage and customary lender’s loss payable endorsements as to casualty and business interruption insurance.
(g) Unless waived by The representations and warranties set forth in Article III of the Administrative AgentCredit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the Effective Date with the same effect as though made on and as of such date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) except to the extent invoiced prior such representations and warranties expressly relate to or an earlier date and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
(h) At the time of and immediately after giving effect to the consummation of the transactions to be effected on the date Effective Date, no Default or Event of this Amendment, plus such additional amounts of such fees, charges Default shall have occurred and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred be continuing or to be incurred by it through the closing proceedings continuing.
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the i) The Administrative Agent shall have received notice a certificate, dated as of the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in clauses (c), (g) and (h) of this Section 3.
(j) The Administrative Agent shall have received a certificate from such Lender prior the chief financial officer of the Borrower, in form and substance reasonably satisfactory to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree Administrative Agent, certifying that the amendments Borrower and its Subsidiaries, on a consolidated basis after giving effect to this Agreement, are Solvent.
(k) The Administrative Agent shall have received an intercreditor agreement, in form and substance reasonably satisfactory to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness Administrative Agent and the funding thereofRequired Lenders, duly executed by Credit Suisse, as Senior Lien Representative (iii) shall become effective on as defined therein), the Fourth Amendment Effective Date immediately prior to the consummation Administrative Agent, as Junior Lien Representative (as defined therein), and each of the Specified LSP Acquisition pursuant to Loan Parties (the Specified LSP Acquisition Agreement “Intercreditor Agreement”).
(l) Substantially concurrently with the effectiveness of the Amendment, the Priming Senior Secured Term Loan Facility shall have been funded in accordance with the terms and conditions of the Priming Senior Secured Term Loan Credit Agreement.
(ivm) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Lenders shall have received from the Loan Parties an initial 13-week budget that is in form and substance reasonably satisfactory to the Required Lenders (it being understood and agreed that the budget attached hereto as Annex IV is reasonably satisfactory to the Required Lenders) (the “Initial Budget”).
(n) The Administrative Agent will notify the Lenders shall have received an executed Amendment No. 2 to Guarantee and Collateral Agreement, dated as of the occurrence of date hereof (the Fourth “Amendment Effective Date.No. 2
Appears in 1 contract
Conditions Precedent to Effectiveness. 2.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section 1 hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions (on or before the date of such satisfaction being hereof:
A. The Borrower and the “Fourth Required Lenders and shall have indicated their consent to this Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction by the execution and delivery of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory applicable signature pages to the Administrative Agent).
B. As of the Second Amendment Effective Date, without any waiverafter giving effect to this Amendment, consentthe representations and warranties contained herein and in the other Loan Documents shall be true, amendment or other modification correct and complete in all material respects on and as of the Second Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date.
C. As of the Second Amendment Effective Date, after giving effect to this Amendment, no event shall have occurred and be continuing that would be materially adverse to the interests constitute an Event of the Lenders Default or the a Default.
D. The Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Financial Officer of the signing Loan Party Borrower and dated the Second Amendment Effective Date certifying that, (y) to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each best knowledge of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingBorrower, if applicableit is in compliance with Sections 6.10, any New Borrowers (as defined below)) in favor 6.12, 6.13, 6.14 and 6.15 of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and that at no time has it been in default of any such Section based upon the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, financial information available to said Financial Officer on the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Second Amendment Effective Date and signed (z) no event shall have occurred and be continuing that would constitute an Event of Default or a Default (other than as contemplated by a Responsible Officer of each New Loan Partythe foregoing clause (y) with respect to Sections 6.10, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize6.12, duly execute 6.13, 6.14 and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity 6.15 of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies Credit Agreement).
E. As of its organizational documents as in effect on the Fourth Second Amendment Effective Date, the Borrower shall have paid all fees and other amounts due and payable, including, to the extent applicableinvoiced, certified as reimbursement or other payment of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be out-of-pocket expenses required to be delivered reimbursed or paid by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to Borrower under any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDocument.
(e) The F. Administrative Agent shall have received, at least 3 business days for distribution to all Lenders executing this Amendment by 12:00 noon Eastern time on Friday, May 30, 2003 an amendment fee equal to 0.10% of such Lenders' outstanding Loans and Commitments immediately prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Second Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness An Eligible Property that has been approved pursuant to Section 5.1(b)(ii) shall be included in the calculation of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to Borrowing Base Availability as a Borrowing Base Property upon the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(iA) Notes duly executed if the Eligible Property is not owned by an existing Subsidiary Guarantor, a joinder or accession agreement to the Guaranty, pursuant to which the Person that owns such Eligible Property (and each Borrower (including, if applicable, any New Borrowers (as defined below)other direct or indirect owner of such new Subsidiary Guarantor that is a Subsidiary of the Borrower) in favor of each Lender requesting Notesbecomes a Subsidiary Guarantor;
(iiB) a duly Pledge and Security Agreement or joinder thereto, in form and substance reasonably satisfactory to the Administrative Agent, reflecting the pledge of Equity Interests by the Borrower in each such new Subsidiary Guarantor as additional Collateral, together with, to the extent requested by the Administrative Agent, certificates and instruments representing the Equity Interests of each such new Subsidiary Guarantor, pledged as Collateral pursuant to the applicable Pledge and Security Agreement, accompanied by undated stock powers or instruments of transfer executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documentsin blank;
(iiiC) a duly executed Security Agreement Supplement by [Reserved];
(D) an Environmental Indemnity in form and substance reasonably satisfactory to the Administrative Agent;
(E) [Reserved];
(F) the transfer of the “landlord’s” or “lessor’s” interest in all Leases with respect to such Eligible Property shall have been consummated in accordance with the terms of each New Loan Party thereof and all requirements such Leases shall name the applicable Subsidiary Guarantor as “landlord” or “lessor” thereunder, whether by amendment, assignment or otherwise, subject only to the consent or approval of the Federal Agency tenant under such Leases (which consent or approval the Loan Parties shall use commercially reasonable and diligent efforts to obtain promptly after the date such Real Estate Asset becomes an Eligible Property and in connection therewith any event within six (including lien searches, any certificated equity and related powers, UCC filings and as applicable, 6) months after such date (or such longer period approved by the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actionsAdministrative Agent));
(ivG) a certificate the Property Management Agreement with respect to such Eligible Property and an Assignment and Subordination of each Management Agreement in respect of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), same (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect other property management arrangement satisfactory to the Specified LSP Acquisition and any Indebtedness incurred in connection therewithAdministrative Agent);
(vH) UCC financing statements required by the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent;
(I) (x) a certificate dated copy of the Fourth Amendment Effective Date owner’s title insurance policy showing no exceptions to title unacceptable to Administrative Agent other than Eligible Property Permitted Liens (and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching including copies of such resolution or other corporate or organizational action; (Ball exception documents) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicablereasonably required by the Administrative Agent, certified as of a sufficiently recent date prior any bringdowns or endorsements to the Fourth Amendment Effective Date by existing title insurance policies in favor of the appropriate state official where such documents are filed in a state office together with certificates from Administrative Agent necessary to preserve the appropriate state officials as to due organization effectiveness of the Real Property Collateral and the continued valid existence and good standing in the state of its organizationrelated title insurance;
(viJ) written opinion(sa current Statement of Lease with respect to such Real Estate Asset;
(K) with respect to any Eligible Property already owned by a new Subsidiary Guarantor, a copy of the Novation Agreements with each applicable Federal Agency or to the extent such Eligible Property is being acquired, any pre-novation assurance letters obtained by the applicable Subsidiary Guarantor, it being agreed that such Subsidiary Guarantor will request such assurance letters from each Federal Agency tenant (to be followed by the applicable Novation Letters following such Real Estate Asset becoming an Eligible Property hereunder within a time period satisfactory to the Administrative Agent);
(L) a perfection certificate and/or supplements to any existing perfection certificates with respect to each such Eligible Property;
(M) an opinion of counsel for to the New Loan Partiesnew Subsidiary Guarantor (including local counsel, dated as required by the Administrative Agent based on its jurisdiction of the Fourth Amendment Effective Dateorganization), addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(viiN) evidence the deliverables described in Sections 6.1(a)(x) through (xiii) with respect to the new Subsidiary Guarantor unless any such item is waived by the Administrative Agent;
(O) a Borrowing Base Certificate calculated as of the end of the then most recently ended Reference Period for which a Borrowing Base Certificate has been delivered pursuant to Section 9.4 (giving pro forma effect to the addition of such Eligible Property as a Borrowing Base Property and any other Borrowing Base Properties added since the end of such Reference Period);
(P) a certificate signed by a Responsible Officer of the Borrower, certifying the following as of the effective date of such Borrowing Base Property Request approval, both immediately before and immediately after giving effect thereto: (1) that all other actionsno Default or Event of Default exists, recordings and filings (2) that the Administrative Agent may deem necessary representations and warranties made or desirable deemed made by each Loan Party in order to perfect the Liens created under the Loan Documents have been taken; provided that to which it is a party are true and correct in all material respects (or in all respects to the extent any that such actionsrepresentations and warranties are already subject to concepts of materiality) on and as of such date with the same force and effect as if made on and as of such date, recordings or filings is required under except to the terms extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date), (3) that such Eligible Property satisfies the requirements of an “Eligible Property” set forth in the definition thereof and (4) that all of the Specified LSP Indebtedness but is not required financial covenants set forth in this Agreement have been satisfied (setting forth calculations demonstrating such compliance);
(Q) Lien search results (consistent with Section 6.01(a)(xv)), to the extent requested by the terms of the Specified LSP Indebtedness Administrative Agent;
(R) any fees payable to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) connection with such Borrowing Base Property Request (including the reasonable fees, charges and (y) the date disbursements of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable outside counsel to the Administrative Agent and the Specified LSP Indebtedness Agent.);
(eS) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding USA PATRIOT Act, without limitation, the PATRIOT Act and including any SS4 to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, a properly completed and signed IRS Form W-8 or W-9, as applicable, and the Borrowers Certification of Beneficial Ownership for each such new Subsidiary Guarantor (together with an updated organizational structure chart);
(T) [reserved];
(U) evidence that the Subsidiary Guarantor that is the owner of such Eligible Property has opened its operating account with the Administrative Agent or a Lender;
(V) certificates of insurance and endorsements and other evidence reasonably satisfactory to the Administrative Agent of compliance with the insurance requirements of this Agreement;
(W) unless not required by the Administrative Agent, a Negative Pledge Agreement in a form acceptable to the Administrative Agent (and in recordable form) providing that, among other things, the applicable Subsidiary Guarantor that owns such Eligible Property shall have paid all reasonable not grant any mortgages, Liens or encumbrances to any Person other than the Administrative Agent so long as such Eligible Property is a Borrowing Base Property; and
(X) such other documents, agreements and documented instruments related to the approval or denial of the Borrowing Base Property Request as the Administrative Agent on behalf of the Lenders may reasonably request. In connection with the addition of the Eligible Property as a Borrowing Base Property and the execution and delivery of the Collateral Documents, the Borrower shall be responsible for any reasonable, actual out-of-pocket fees, charges and disbursements of counsel to the costs or expenses incurred by Administrative Agent (directly to such counsel if requested by including the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or outside counsel to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting ; if applicable, any intangibles or transfer taxes; if applicable, any title insurance premiums; any recording charges or other amounts payable in connection with the generality recording of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCollateral Documents.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall be effective when each of the following conditions shall be satisfied (the date of such satisfaction being effectiveness, the “Fourth Amendment No. 1 Effective Date” so long as such date occurs on or prior to December 31, 2024):
”): (a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition Agent shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt received each of the following, each of which shall be originals originals, telecopies, other electronic image scan transmission (e.g., “pdf” or telecopies “tif” via electronic mail), subject to Section 9.06 of the Existing Credit Agreement (followed promptly by originals) unless otherwise specifiedspecified or permitted by the Existing Credit Agreement: (i) this Amendment, duly executed by ▇▇▇▇▇▇▇▇▇, the other Loan Parties, the Agent, and the Lenders constituting the Required Lenders; (ii) the Second Amendment to ABL Credit Agreement, in form and substance reasonably satisfactory to the Agent, duly executed by the ABL Agent, the lenders party thereto and the Loan Parties, which Second Amendment to ABL Credit Agreement shall be in full force and effect and no default or event of default shall exist under the Term Documents, or would result from the consummation of the transactions contemplated hereby; (iii) the applicable liquidation agreements with respect to the Permitted Store Closings (including, without limitation, any applicable statements of work), in form and substance reasonably satisfactory to the Agent, which shall be in full force and effect as of the date hereof; (iv) (a) an initial Approved Budget for the 13-week period commencing on June 30, 2024 which shall be in form and substance reasonably satisfactory to the Agent, which initial Approved Budget was prepared by the Company (after consultation with the Financial Consultant) and in good faith based upon reasonable assumptions for the 13-week period covered thereby; and (b) a Borrowing Base Certificate and an ABL Borrowing Base Certificate, each properly executed dated as of the Amendment No. 1 Effective Date, relating to the fiscal week ended on July 27, 2024 and in form and substance reasonably satisfactory to the Agent; (v) a certificate of a Responsible Officer of each Loan Party, dated as of the date hereof, (a) attesting to the resolutions of the Company’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which it is a party, and authorizing specific officers of such Loan Party to execute the same, (b) certifying that, for the resolutions of each Loan Party, other than the Company, no changes to the resolutions delivered in connection with Amendment No. 1 have been made, and confirmation that such resolutions authorize each Loan Party’s execution, delivery, and performance of the Loan Documents to which it is a party, (c) certifying that, since the delivery of each Loan Party’s incumbency and organizational documents in connection with Amendment No. 1, no changes have been made to such documents, and (d) attaching copies of a certificate of status with respect to such Loan Party, dated within thirty (30) days of the Amendment No. 1 Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization or registration of such Loan Party, which certificate shall indicate that such Loan Party is in good standing in such jurisdiction (or other similar status, as applicable); (vi) a certificate, signed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party theretoBorrower Representative, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each as of the Lenders party to this Amendment:
date hereof (ia) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying stating that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately or will arise after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
this Amendment, (vb) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings stating that the Administrative Agent may deem necessary or desirable representations and warranties contained in order to perfect the Liens created under the Loan Documents have been taken; provided are true and correct in all material respects as of such date (it being understood and agreed that any representation or warranty which is subject to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but materiality qualifier shall be required to be delivered by the earlier of true and correct in all respects), (xc) 90 days (or such later time certifying any other factual matters as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent, (d) to certifying that all regulatory approvals, licenses and consents required for the extent invoiced prior to or on the date delivery and performance by any Loan Party of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers any Loan Document and the Administrative Agent). Without limiting the generality enforceability of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from any Loan Document against such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.Loan
Appears in 1 contract
Sources: Credit Agreement (Big Lots Inc)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentU.S. Cellular Revolving Loan Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, dated as of December 9, 2021, among U.S. Cellular, Toronto Dominion (Texas) LLC, as the administrative agent, and the lenders party thereto, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021, among U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, received payment of all documentation reasonable and other information required by regulatory authorities under applicable “know your customer” invoiced out‑of‑pocket fees and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived expenses incurred by the Administrative Agent, Agent and its Affiliates (including the Borrowers shall have paid all reasonable and documented out-of-pocket invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent (directly to such in reasonable detail, and one local counsel if requested by in each relevant jurisdiction), in connection with the Administrative Agent) to the extent invoiced prior to or on the date preparation, negotiation, execution, delivery and administration of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality h) each of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified representations and warranties made in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented totrue and correct in all material respects (or, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth extent any such representation or warranty is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Amendment Effective Date specifying its objection thereto. The parties hereto understand (as defined below), both before and agree that after giving effect to the amendments to contemplated by this Amendment as if such representations and warranties were being made on and as of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (iia) and (b) of Section 5.05 of the Credit Agreement shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior refer to the documentation effectuating any Specified LSP Indebtedness most recent statements furnished pursuant to subsections (a) and the funding thereof(b), (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation respectively, of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment This Agreement, the Amendments and the amendments each Incremental Term Lender’s obligation to the Existing Credit Agreement set forth herein are subject to provide its respective Incremental Term Loan shall become effective solely upon the satisfaction (or waiver) of each of the following conditions precedent (the date upon satisfaction of such satisfaction conditions, such date being referred to in this Agreement as the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction Administrative Agent shall have received a counterpart signature page of this Agreement duly executed by each of the conditions set forth in Section 3 (as and to Loan Parties, the extent provided therein) Incremental Term Lenders and the occurrence of other Lenders party hereto constituting the Fourth Amendment Closing Date;Required Lenders.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)the Arrangers, it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Incremental Term Lenders and the Administrative Agent other Lenders party hereto shall have been reimbursed or paid all costs, expenses, fees and other amounts previously agreed in writing by any of them with the Borrower to be earned, due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (in their respective capacities as such)including reasonable costs, expenses, fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Arrangers, the Incremental Term Lenders and the other Lenders party hereto, a written opinion of ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Borrower, or such other or additional counsel for the Borrower reasonably acceptable to the Administrative Agent, (A) dated as of the Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent, the Arrangers, the Incremental Term Lenders and the other Lenders party hereto, and (C) covering such matters relating to this Agreement and the other Loan Documents as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Effective Date and at least 3 business days all times since a date prior to the Fourth Amendment Effective Datedate of the resolutions described in clause (B) below (or in the alternative, all documentation a certification by such Loan Party as to no changes to the by-laws since the date of the last secretary’s certificate delivered to the Administrative Agent), (B) that attached thereto is a true and other information required complete copy of resolutions duly adopted by regulatory authorities under applicable “know your customer” the board of directors of such Loan Party authorizing the execution, delivery and anti-money laundering rules performance of this Agreement and regulationsthe Transactions to which such Person is a party and, including, without limitationin the case of the Borrower, the PATRIOT Act borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that attached thereto is a copy of the certificate or articles of incorporation, 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 (or in the alternative, a certification by such Loan Party as to no changes to the extent required thereby, certificate or articles of incorporation since the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior date of the last secretary’s certificate delivered to the Fourth Amendment Effective DateAdministrative Agent), and (D) as to the incumbency and specimen signature of each officer executing this Agreement, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; (iv) such other documents as the Administrative Agent may reasonably request, including customary lien and judgment searches with respect to each Loan Party (including the Company) and customary evidence of insurance coverage and customary lender’s loss payable endorsements as to casualty and business interruption insurance.
(e) No Default or Event of Default under Section 7.01(b), (c), (g) or (h) shall have occurred and be continuing or would result from the Transactions.
(f) The Borrowers After giving effect to the Transactions, the total amount of Incremental Term Loans shall have paid in full all fees payable in connection with this Amendment as of not exceed the Fourth Amendment Effective DateIncremental Term Loan Amount.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from a certificate, dated as of the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (e), (f) and (j) of this Section 5; provided that any certification relating to compliance with the definition of “Incremental Term Loan Amount” in, and Sections 2.23 and 6.04(f) of, the Credit Agreement shall be signed by a Financial Officer of the Borrower setting forth reasonably detailed calculations in support of such Lender prior certification, in form and substance reasonably satisfactory to the proposed Fourth Amendment Effective Date specifying its objection thereto. Administrative Agent.
(h) The parties hereto understand Administrative Agent shall have received a certificate from the chief financial officer of the Borrower in form and agree substance reasonably satisfactory the Administrative Agent certifying that the amendments Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Existing Credit Agreement set forth herein Transactions, are Solvent.
(i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent shall have received a Borrowing Request with respect to the Incremental Term Loans not later than 1:00 p.m., New York City time, one Business Day before the Effective Date and otherwise in accordance with the Borrowing Agent will notify the Lenders requirements of Section 2.03 of the occurrence Credit Agreement.
(j) The satisfaction of the Fourth Amendment Effective Dateother conditions precedent set forth on Annex III attached hereto.
Appears in 1 contract
Sources: Incremental Loan Assumption Agreement (AAC Holdings, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Assignment and Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions shall become effective (the date of such satisfaction being effectiveness, the “Fourth Assignment and Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):”) upon the satisfaction of the following conditions:
(a) The prior or substantially simultaneous satisfaction This Assignment and Amendment shall have been executed and delivered by each of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Dateparties hereto;
(b) The Specified LSP Acquisition Administrative Agent (or its counsel) shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (have received such customary documents and certificates as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification its counsel may reasonably request relating to the definition organization, existence and good standing of the term “Material Adverse Effect” in Assignee, the Specified LSP Acquisition Agreement (as in effect on the first date authorization of execution thereof) will be deemed to be materially adverse entry into this Assignment and Amendment and any other legal matters relating to the interests of the Lenders Assignee or this Assignment and Amendment, all in form and substance reasonably satisfactory to the Administrative Agent (in their respective capacities as such).and its counsel;
(c) All Specified LSP Indebtedness The Administrative Agent (or its counsel) shall be funded substantially simultaneously with the consummation have received such incumbency certificates and/or other certificates of Authorized Representatives of the Specified LSP Acquisition Assignee as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Authorized Representative thereof authorized to act as an Authorized Representative in connection with this Assignment and Amendment and the effectiveness of this Amendmentother Loan Documents to which the Assignee is a party or is to be a party;
(d) The Administrative Agent (or its counsel) shall have received, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions form and substance reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or a certificate signed by an authorized officer of the Assignee certifying that the representations and warranties specified in Section 5 of this Assignment and Amendment are true and correct; and
(i) Each Finance Party shall have received such documents and other modification that would be materially adverse information with respect to the interests of the Lenders or Assignee (as such Finance Party may have requested through the Administrative Agent at least five (5) Business Days prior to the Assignment and Amendment Effective Date) required under any applicable “know your customer” and/or anti-money laundering rules and regulations, including the PATRIOT Act, in their respective capacities connection with this Assignment and Amendment and (ii) to the extent that the Assignee qualifies as sucha “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) without Business Days prior to the Administrative Agent’s Assignment and Amendment Effective Date, any Lender that has requested, in a written notice to the Assignee at least ten (10) Business Days prior written consent to the Assignment and Amendment Effective Date, a Beneficial Ownership Certification in relation to the Assignee shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such consent not Lender of its signature page to this Assignment and Amendment, the condition set forth in this clause (ii) shall be deemed to be unreasonably withheld, delayed or conditionedsatisfied).
(df) The Administrative Agent’s receipt Agent shall have received, on behalf of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement itself and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searchesLenders, any certificated equity and related powersan opinion from Cravath, UCC filings and as applicableSwaine & ▇▇▇▇▇ LLP, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by Prior to or substantially concurrently with the Administrative Agentoccurrence of the Assignment and Amendment Effective Date, the Borrowers shall have paid reimbursed or paid, to the extent invoiced at least two (2) Business Days prior to the Assignment and Amendment Effective Date, all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to expenses incurred by the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of in connection with this Assignment and Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Borrower Assignment & Assumption and Amendment Agreement (Genpact LTD)
Conditions Precedent to Effectiveness. This Amendment and the obligations of the Additional Refinancing Lender to provide the Amendment No. 7 Refinancing Term Loan Commitments is subject to the satisfaction or waiver in accordance with Section 12.12 of the Credit Agreement of the following conditions precedent (upon satisfaction or waiver of such conditions, such date being referred to herein as the “Seventh Amendment Effective Date”):
4.1 The effectiveness Seventh Amendment Arrangers shall have received all fees and other amounts previously agreed in writing by the Seventh Amendment Arrangers (or any of its affiliates) and the Borrower to be due and payable on or prior to the Seventh Amendment Effective Date in the amounts and at the times so specified, including reimbursement or payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Seventh Amendment Arrangers, taken as a whole) required to be reimbursed or paid by any Loan Party under any letter agreement previously entered into among the Seventh Amendment Arrangers and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the Seventh Amendment Effective Date.
4.2 The representations and warranties set forth in Section 5 of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) Article V of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement shall be true and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and correct in all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings material respects on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Seventh Amendment Effective Date, except to the extent applicablesuch representations and warranties expressly relate to an earlier date, certified in which case they were true and correct in all material respects on and as of a sufficiently recent date prior such earlier date, and except that such materiality qualifier shall not be applicable to the Fourth Amendment Effective Date any representation and warranty that is already qualified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;materiality.
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the 4.3 The Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent Additional Refinancing Lender shall have received, at least 3 business days three Business Days (or such shorter period as otherwise agreed) prior to the Fourth Seventh Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the Seventh Amendment Effective Date by the Administrative Agent and the Additional Refinancing Lender that they reasonably determine is required by regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the PATRIOT Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the extent required therebyBorrower.
4.4 The Administrative Agent shall have received, the Beneficial Ownership Regulationa legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, that has been reasonably requested in writing by any Lender at least 5 business days prior counsel to the Fourth Amendment Effective Date.
Loan Parties and (fy) The Borrowers ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel be addressed to the Administrative Agent (directly and the Lenders, dated as of the Seventh Amendment Effective Date and shall be in form and substance reasonably satisfactory to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the .
4.5 The Administrative Agent shall have received notice a counterpart signature page of this Amendment, executed and delivered by (i) the Borrower, Holdings, each Subsidiary Guarantor, (ii) the Administrative Agent and (iii) the Additional Refinancing Lender and Consenting Term Loan Lenders (which collectively such Lenders shall constitute 100% of all Lenders outstanding prior to this Amendment).
4.6 The Administrative Agent shall have received a certificate of each Loan Party, dated the Seventh Amendment Effective Date signed by the secretary or any assistant secretary of such Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the Seventh Amendment Effective Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
4.7 At the time of, and immediately after giving effect to, this Amendment, no Default or Event of Default shall have occurred and be continuing or resulted therefrom.
4.8 The Administrative Agent shall have received a certificate, dated the Seventh Amendment Effective Date and signed on behalf of each of Borrower and Holdings, as applicable, certifying on behalf of the Borrower and Holdings that the conditions precedent set forth in Sections 4.2 and 4.7 have been satisfied or waived on such Lender date.
4.9 The Administrative Agent shall have received a Notice of Borrowing with respect to the Amendment No. 7 Refinancing Term Loans in the form of Exhibit F to the Credit Agreement.
4.10 The Borrower shall have paid to the Administrative Agent, for the ratable account of the Lenders holding Term Loans outstanding prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Seventh Amendment Effective Date, (ii) shall be deemed to become effective all accrued and unpaid interest on such Term Loans to, but not including, the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Seventh Amendment Effective Date.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentU.S. Cellular Revolving Loan Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth Senior Term Loan Credit Agreement, dated as of December 9, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among U.S. Cellular, Toronto Dominion (Texas) LLC, as the administrative agent, and the lenders party thereto, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among the Borrower, the lenders party thereto, and Export Development Canada, as a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective upon the satisfaction of this Amendment the condition set forth in paragraph (a) below; provided that the amendments set forth in Sections 2 through 12, the authorization set forth in Section 13 and the amendments to the Existing Credit Agreement agreement set forth herein are subject in Section 16 shall become effective only upon the satisfaction, on a date (the "Effective Date") on or prior to the satisfaction (or waiver) February 28, 2004, of each of the following conditions set forth below (the date of and failing such satisfaction being the “Fourth Amendment Effective Date” so long as by such date occurs on date, such amendments, authorization and agreements shall cease to be of any further force or prior to December 31, 2024effect):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as Administrative Agent shall have received counterparts hereof duly executed and to the extent provided therein) delivered by Goodyear, each Borrower and the occurrence of the Fourth Amendment Closing Date;Majority Lenders.
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with have received such evidence as it shall reasonably have requested as to the effectiveness corporate power and authority of Goodyear and each of the Borrowers to enter into this Amendment in accordance with and to perform its obligations hereunder and under the terms of the Specified LSP Acquisition Credit Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)amended hereby.
(c) All Specified LSP Indebtedness The Administrative Agent shall be funded substantially simultaneously with have received a certificate of an officer of each of Goodyear and the consummation European J.V. to the effect that the representations and warranties set forth in Section 15 are true and correct in all material respects on and as of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)Effective Date.
(d) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies (followed promptly Amendment Fees payable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Goodyear pursuant to Section 16 and all other fees payable to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment Arrangers and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent US Term Facility Agreement shall have receivedbeen amended to require that (i) if proceeds from borrowings under the ABL Facilities Agreement pursuant to commitments becoming effective substantially concurrently with the Effective Date shall exceed $300,000,000, at least 3 business days prior Goodyear shall prepay loans under the US Term Facility Agreement in an aggregate amount equal to 100% of such proceeds in excess of $300,000,000, net of the Fourth Amendment Effective Date, all documentation aggregate fees and other information required out-of-pocket expenses paid by regulatory authorities Goodyear in connection with the borrowings under applicable “know your customer” the ABL Facilities and antithe related bank agreements and (ii) Goodyear shall apply 50% of the Net Cash Proceeds of incurrences or issuances of Senior Subordinated-money laundering rules and regulations, including, without limitation, Lien Indebtedness to prepay loans under the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateUS Term Facility Agreement.
(f) The Borrowers US Revolving Facility Agreement shall have paid been amended to require that (i) 50% of the Net Cash Proceeds (as defined therein) of all issuances or incurrences of Senior Subordinated-Lien Indebtedness be applied to permanently reduce or restrict the Regular Way Commitments (as defined therein), or, if applicable, the Commitments thereunder after the US Term Facility has been repaid in full all and (ii) if proceeds from borrowings under the ABL Facilities Agreement pursuant to commitments becoming effective substantially concurrently with the Effective Date shall exceed $300,000,000, Goodyear shall apply to the reduction or restriction of commitments under the US Revolving Facility after the US Term Facility has been repaid in full an aggregate amount equal to 100% of such proceeds in excess of $300,000,000, net of the aggregate fees payable and out-of-pocket expenses paid by the Borrower in connection with this Amendment as of the Fourth Amendment Effective Dateborrowings under the ABL Facilities and the related bank amendments.
(g) Unless waived by the Administrative AgentThe US Revolving Facility Agreement, the Borrowers US Term Facility Agreement and the ABL Facilities Agreement shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel been or shall simultaneously be amended in a manner reasonably satisfactory to the Administrative Agent (directly to such counsel if requested by permit the Administrative Agent) to the extent invoiced prior to or on the date incurrence, issuance and sale of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers Senior Subordinated-Lien Indebtedness and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreementother transactions contemplated hereby, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed case in a manner substantially corresponding to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateeffected hereby, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024extent applicable. The Administrative Agent and the Borrowing Agent will shall notify the Lenders of when it determines that the occurrence of foregoing conditions have been satisfied and that this Amendment has become fully effective, and such notice shall be conclusive and binding upon the Fourth Amendment Effective DateLenders.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or precedent has been fulfilled prior to December 31or concurrently herewith, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to, and otherwise to the satisfaction of, the Administrative Agent and each the Required Lenders (such date, the “Third Amendment Effective Date”):
(a) Substantially concurrently with the Third Amendment Effective Date, the Borrower shall have prepaid the Term Loans outstanding as of the Third Amendment Effective Date in full, together with any accrued interest thereon and the prepayment premium with respect thereto with the proceeds of Permitted Senior Indebtedness.
(b) The Administrative Agent shall have received duly executed counterparts of this Amendment from the Borrower and the Lenders party hereto constituting the Required Lenders.
(c) Immediately prior to and immediately after giving effect to this Amendment:, no Default or Event of Default shall have occurred and be continuing.
(id) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder Immediately prior to and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectivelyimmediately after giving effect to this Amendment, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) representations and each other New Loan Party as a Guarantor under warranties herein and in the Amended Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party Documents shall be true and correct in all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings material respects on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officerdate hereof, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), as though made on such date (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, except to the extent applicablethat (i) such representations and warranties relate solely to an earlier date, certified in which case such representations and warranties shall have been true and correct in all material respects as of a sufficiently recent date prior to the Fourth Amendment Effective Date such earlier date, or (ii) such representations and warranties are qualified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing materiality in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing text thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but in which case they shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent true and correct in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentall respects).
(ei) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation Required Lenders and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender all amounts required to be paid pursuant to Section 4 and (ii) O’Melveny, as counsel to certain Term Lenders, shall have received payment of their reasonable fees and expense to the extent required pursuant to Section 10.5 of the Credit Agreement, in each case to the extent an invoice is provided to the Borrower at least three (3) Business Days prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Third Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment This Agreement and the amendments obligations of the Incremental Lenders to provide the Existing Credit Agreement set forth herein Incremental Term Loans are subject to the satisfaction (or waiver) of each of the following conditions precedent (the date upon satisfaction of such satisfaction conditions, such date being referred to herein as the “Fourth Amendment Incremental Facility No. 1 Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be All fees required to be delivered by paid on the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Incremental Facility No. 1 Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable pursuant to the Administrative Agent 2017 Incremental Fee Letters and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel expenses required to be paid on the Incremental Facility No. 1 Effective Date pursuant to the Administrative Agent commitment letter, dated as of May 18, 2017, by and among the Borrowers and Owl Rock (directly the “2017 Incremental Commitment Letter”), shall, upon the borrowing of the 2017 Incremental Term Loans, have been paid (which amounts may be offset against the proceeds of the 2017 Incremental Term Loans).
(ii) The Specified Acquisition Agreement Representations (as defined below) shall be true and correct and the Specified Representations (as defined below) shall be true and correct in all material respects (without duplication of any materiality qualifiers therein and except in the case of any Specified Representation which expressly relates to a given date or period, such counsel if requested representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be). For purposes of this Agreement, (x) “Specified Acquisition Agreement Representations” shall mean the representations and warranties in the Acquisition Agreement made by the Administrative Agent) Target, the Seller and their respective subsidiaries that are material to the interests of the Incremental Lenders, but only to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and have (and/or their applicable affiliate has) the Administrative Agent). Without limiting right to terminate the generality of Borrowers’ (and/or its) obligations under the provisions of Acquisition Agreement or the last paragraph of Section 11.3 of right not to consummate the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP terms of the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement and (ivy) “Specified Representations” shall not become effective mean the representations and warranties set forth in any event unless Sections 5.01(a), 5.01(b)(ii) (solely as it relates to the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.due
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Second Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Second Amendment Effective Date”) of when each of the following conditions (shall have been satisfied; provided that if the date following conditions are not satisfied by April 5, 2013, this Second Amendment shall not become effective and shall be of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on no force or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and effect with respect to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentCredit Agreement:
(i) Notes duly executed by each Borrower (includingthe Borrower, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders constituting the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and in form and substance satisfactory shall have delivered (including by way of facsimile, pdf or other electronic transmission) the same to the Administrative Agent;
(viiii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by representations and warranties made pursuant to Section 3 hereof shall be true and correct in all material respects on the terms Second Amendment Effective Date after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings Second Amendment Effective Date (it being understood and agreed that (x) any representation or filings shall not be warranty which by its terms is made as of a condition to effectiveness hereunder but specified date shall be required to be delivered by the earlier true and correct in all material respects only as of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such specified date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect any representation or warranty that is qualified as to any Specified LSP Indebtedness; and“materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(viiiiii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers Borrower shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all any reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by for the Administrative Agent; and
(iv) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to other documents, information or agreements regarding the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that Borrower as the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Dateshall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. 2.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section 1 hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions (on or before the date of such satisfaction being hereof:
A. The Borrower, the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Required Lenders and the Administrative Agent (in Subsidiary Loan Party shall have indicated their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with consent to this Amendment by the consummation execution and delivery of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory applicable signature pages to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests .
B. As of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Second Amendment Effective Date certifying that no Event of Default under Section 10.1(a)Date, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to this Amendment, the Specified LSP Acquisition representations and any Indebtedness incurred warranties contained herein and in connection therewith;
(v) a certificate dated the Fourth other Loan Documents shall be true, correct and complete in all material respects on and as of the Second Amendment Effective Date to the same extent as though made on and signed by a Responsible Officer as of each New Loan Partythat date, certifying except to the extent such representations and warranties specifically relate to an earlier date, in which case SECOND AMENDMENT 3 TO CREDIT AGREEMENT such representations and warranties shall have been true, correct and complete in all material respects on and as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity earlier date.
C. As of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Second Amendment Effective Date, after giving effect to the extent applicablethis Amendment, certified as no event shall have occurred and be continuing that would constitute an Event of Default or a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;Default.
(vi) written opinion(s) of counsel for the New Loan Parties, dated as D. As of the Fourth Second Amendment Effective Date, addressed to the Administrative Agent Borrower shall have paid all fees and the Lenders other amounts due and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actionspayable, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that including, to the extent any such actionsinvoiced, recordings reimbursement or filings is required under the terms other payment of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be all out-of-pocket expenses required to be delivered reimbursed or paid by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to Borrower under any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDocument.
(e) The E. Administrative Agent shall have received, at least 3 business days for distribution to all Lenders executing this Amendment by 12:00 noon Eastern time on Wednesday, April 25, 2007, an amendment fee equal to 0.05% of such Lenders’ outstanding Loans and, without duplication, unused Commitments immediately prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Second Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective as of this Amendment the date hereof when, and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of only when each of the following conditions (has been met or duly waived by the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent in writing:
(a) The prior or substantially simultaneous satisfaction of AGI and the conditions set forth in Section 3 Borrower Parties, as appropriate, shall have issued the AGI Bonds (as and to the extent provided therein2016) and entered into the occurrence of the Fourth Amendment Closing Date;
AGI Bonds (b2016) The Specified LSP Acquisition Documents, which shall be consummated substantially concurrently in full force and effect, with all conditions to closing thereof satisfied or duly waived, and the effectiveness of this Amendment in accordance proceeds thereof shall have been used to, among other things and with other transactions not prohibited by the terms of the Specified LSP Acquisition Credit Agreement, (i) repay and terminate the AGI Credit Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” was defined in the Specified LSP Acquisition Credit Agreement (as in effect on the first date of execution thereof) will be deemed immediately prior to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject ) and (ii) redeem and discharge the AGI Bonds and the AGH Bonds (as such terms were defined in the Credit Agreement immediately prior to the conditions precedent thereto contained in effectiveness of this Amendment) and the documentation therefor (which conditions corresponding Funded Debt. The Lender Group shall be consistent have received a certificate of an Authorized Signatory of Camping World so stating the foregoing, together with customary “limited conditionality” provisions and reasonably evidence satisfactory to the Administrative AgentLender Group of each of the foregoing with such other documentation as the Lender may reasonably request (including, without limitation, evidence of pay-off), without any waiverand together with a true, consent, amendment or other modification that would be materially adverse to the interests correct and complete copy of the Lenders or the Administrative Agent AGI Bonds (in their respective capacities as such2016) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldDocuments, delayed or conditioned).
(d) The Administrative Agent’s receipt of the followingincluding all exhibits and schedules thereto, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting NotesGroup;
(iib) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each The rights of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), AGI Bonds (f2016) or Noteholders and AGI Bonds (g2016) has occurred and is continuing both immediately before and immediately after giving effect Trustee with respect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated Collateral shall be subordinated to the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity rights of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies holders of its organizational documents as in effect on the Fourth Amendment Effective Date, Obligations with respect to the extent applicable, certified as of a sufficiently recent date prior Collateral pursuant to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan PartiesIntercreditor Agreement, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and which shall be in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received evidence of the pay-off of and release of all Liens with respect to the AGI Credit Documents (as such term was defined in the Credit Agreement immediately prior to the effectiveness of this Amendment), in each case to the satisfaction of the Administrative Agent;
(viid) evidence that all other actions, recordings and filings that the The Administrative Agent may deem necessary or desirable in order to perfect shall have received a duly executed subordination agreement subordinating the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date AGI Intercompany Note (as such date may be extended by term is used in Section 1(a) above) in right and time of payment to the Obligations and containing such other terms and conditions satisfactory to Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP IndebtednessAgent; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to received the Fourth counterparts of this Amendment Effective Date, all documentation and other information required duly executed by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitationthe Borrowers, the PATRIOT Act and to the extent required therebyGuarantors, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, Issuing Bank, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers Swing Bank and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed Lenders and a duly executed acknowledgement and agreement to this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateAGI.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on precedent have been satisfied or prior to December 31, 2024):waived:
(a) The Except as disclosed in filings made by the Company with the SEC, press releases and other public disclosures prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;date hereof, there shall have occurred no Material Adverse Change since December 31, 2021.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously material governmental and third party consents and approvals necessary in connection with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions transactions contemplated hereby shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)have been obtained.
(d) The Administrative Agent’s receipt Company shall have paid all accrued and invoiced fees and expenses of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders (including the accrued and in form invoiced fees and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements expenses of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this AmendmentEffective Date.
(e) On the Effective Date, plus such additional amounts of such fees, charges and disbursements as the following statements shall constitute its reasonable estimate of such fees, charges and 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 Borrowers true and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the proposed Fourth Amendment Effective Date specifying its objection theretoDate.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel).
(g) The Company shall have terminated the commitments, and paid in full all accrued and unpaid amounts, under the Company’s Credit Agreement dated as of August 15, 2018 (the “Existing Credit Agreement”). The parties hereto understand and agree Each of the Lenders that the amendments is a party to the Existing Credit Agreement set forth herein (i) shall not become effective until hereby waives the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately requirement of prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation notice of termination of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datecommitments under such Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. 2.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section 1 hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions on or before the date hereof (the date of such satisfaction being the “Fourth "Second Amendment Effective Closing Date” so long as such date occurs on or prior to December 31, 2024"):
(a) The prior or substantially simultaneous satisfaction Borrower, Holdings, Scotiabank and Requisite Lenders shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages hereof to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent.
(b) The Specified LSP Acquisition Agents shall be consummated substantially concurrently with the effectiveness have received an opinion of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse counsel to the interests of the Lenders or the Administrative Agent (Borrower in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood form and agreed that any amendment or modification substance reasonably satisfactory to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)Agents.
(c) All Specified LSP Indebtedness As of the Second Amendment Closing Date, the representations and warranties contained herein and in the other Loan Documents shall be funded substantially simultaneously with the consummation true, correct and complete in all respects on and as of the Specified LSP Acquisition and the effectiveness of this Amendment, subject Second Amendment Closing Date to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions same extent as though made on and reasonably satisfactory as of that date, except to the Administrative Agent)extent such representations and warranties specifically relate to an earlier date, without any waiverin which case such representations and warranties shall have been true, consent, amendment or other modification that would be materially adverse to the interests correct and complete in all respects on and as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)earlier date.
(d) The Administrative Agent’s receipt As of the followingSecond Amendment Closing Date, each of which no event shall have occurred and be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent continuing that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no would constitute an Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDefault.
(e) The Administrative Agent Scotiabank shall have received, at least 3 business days prior received a new Revolving Note to reflect the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, extension of the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Revolving Loan Commitment Termination Date.
(f) The Borrowers Agents shall have paid in full received all fees and other amounts due and payable in connection with this on or prior to the Second Amendment as Closing Date, including, to the extent invoiced, reimbursement or other payment of all legal and other out-of- pocket expenses required to be reimbursed or paid by the Fourth Amendment Effective DateBorrower hereunder or under any other Loan Document.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable The Agents and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Lenders shall have received notice from such Lender prior to other documents and information regarding Credit Parties and the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on as Agents or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datemay reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Rose Hills Co)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Date;other Loan Parties.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentU.S. Cellular Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, dated as of December 9, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among U.S. Cellular, Toronto Dominion (Texas) LLC as the administrative agent, and the Specified LSP Indebtedness lenders party thereto, which shall be in form and substance reasonably acceptable to the Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth credit agreement evidencing the CoBank U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021 (and as amended, restated, supplemented or otherwise modified from time to time), among U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among the Borrower, the lenders party thereto and Export Development Canada, as a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The prior or substantially simultaneous satisfaction Administrative Agent shall have received a fully executed copy of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;this Amendment.
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms have received a duly executed copy of the Specified LSP Acquisition Agreement (Third Amendment Fee Letter dated as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)hereof.
(c) All Specified LSP Indebtedness The Administrative Agent shall be funded have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially simultaneously with in the consummation form of the Specified LSP Acquisition and the effectiveness of this Amendment, subject Exhibit C to the conditions precedent thereto contained in Credit Agreement, with appropriate insertions and attachments, including (A) the documentation therefor Operating Documents of such Loan Party (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).a
(d) The Administrative Agent’s receipt Agent shall have received the results of the followingrecent lien, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment judgment and each litigation searches in form and substance satisfactory to the Administrative Agent and each of the Lenders party jurisdictions reasonably required by the Administrative Agent, and such searches shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the Credit Agreement.
(e) There shall not have occurred since January 31, 2023, any event or condition that has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) All necessary consents and approvals to this Amendment shall have been obtained.
(g) Immediately, after giving effect to this Amendment:, no Default or Event of Default shall have occurred and be continuing.
(ih) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectivelyImmediately after giving effect to this Amendment, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) representations and each other New Loan Party as a Guarantor under warranties set forth in this Amendment, the Credit Agreement and the other Loan Documents;
, as amended by this Amendment, to which it is a party (iiii) a duly executed Security Agreement Supplement that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each New Loan Party and all requirements in connection therewith (including lien searchescase, any certificated equity and related powers, UCC filings on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority date as if made on and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Partiesdate, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that except to the extent any such actionsrepresentation and warranty expressly relates to an earlier date, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, in which case such actions, recordings or filings representation and warranty shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days have been true and correct in all material respects (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A.all respects, as administrative agent with respect to any Specified LSP Indebtedness (in applicable) as of such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentearlier date.
(ei) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation Lenders and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior all fees required to be paid, and all expenses for which invoices have been presented (including the proposed Fourth reasonable fees and expenses of legal counsel required to be paid hereunder or under any other Loan Document) and under the Third Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective DateFee Letter, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and before the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Third Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Yext, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Lender shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition the Lender shall be consummated substantially concurrently with the effectiveness have received evidence of this Amendment in accordance with the terms concurrent consummation of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse a related amendment to the interests of credit agreement evidencing the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldU.S. Cellular SOFR Loan Facility, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent Lender;
(c) the Lender shall have received evidence of concurrent consummation of a related amendment to the TDS ▇▇▇▇▇ Fargo Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Agent.Lender;
(d) the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Lender;
(e) The Administrative Agent the Lender shall have received, at least 3 business days prior received evidence of concurrent consummation of a related amendment to the Fourth credit agreement evidencing the TDS CoBank Term Loan Facility, which shall be in form and substance reasonably acceptable to the Lender;
(f) the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Lender;
(g) the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Citibank Loan Facility, which shall be in form and substance reasonably acceptable to the Lender; and
(i) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness (a) This Agreement shall be effective with respect to the items addressed in the preliminary statements upon the Effective Date, and shall be effective with respect to all other matters on the Closing Date or the date of this the applicable Amendment and no Lender shall be obligated to make any Advance hereunder from and after the amendments Closing Date, nor shall any Lender, the Collateral Custodian, the Servicer, the Account Bank or the Administrative Agent be obligated to the Existing Credit Agreement set forth herein are subject to take, fulfill or perform any other action hereunder, until, the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendmentprecedent:
(i) Notes this Agreement, all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by each Borrower (includingby, if applicableand delivered to, any New Borrowers (as defined below)) in favor of each Lender requesting Notesthe parties hereto and thereto;
(ii) a duly executed Guarantor Joinder all up‐front expenses and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, fees (including reasonable legal fees and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor any fees required under the Credit Agreement Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three Business Days prior to the other Loan DocumentsClosing Date shall have been paid in full;
(iii) a duly executed Security Agreement Supplement the representations and warranties contained in Sections 4.01, 4.02 and 4.06 are true and correct (as certified by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actionsBorrower);
(iv) a certificate of each As of the Loan Parties signed by a Responsible OfficerClosing Date, dated the Fourth Amendment Effective Date certifying that no Event Borrower had received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of Default under Section 10.1(a), (fthe Lenders) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewithwith the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods shall have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(v) a certificate dated no action, proceeding or investigation shall have been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution other Transaction or other corporate or organizational action; (B) the names, authority and capacity consummation of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Datetransactions contemplated hereby or thereby, to the extent applicableor which, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of its organization;the transactions contemplated hereby or thereby; and
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, received all documentation and other information requested by the Administrative Agent acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower and the Servicer under applicable “know your customer” and anti-money anti‐money laundering rules and regulations, including, without limitation, the USA PATRIOT Act Act, all in form and substance reasonably satisfactory to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Agreement shall become effective on the first date (the “Second Amendment to Second Amended and the amendments to the Existing Restated Credit Agreement set forth herein are subject to the satisfaction (or waiverEffective Date”) of each of on which all the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):are satisfied:
(a) The prior Administrative Agent (or substantially simultaneous satisfaction its counsel) shall have received from each party hereto, including Lenders constituting the “Required Revolving Lenders” under and as defined in the Existing Credit Agreement, a counterpart of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence this Amendment signed on behalf of the Fourth Amendment Closing Date;such party. |
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with the effectiveness of this Amendment have received a reaffirmation agreement in accordance with the terms respect of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Security Agreement, executed and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed delivered by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent Agent.
(c) Both prior to and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on the Second Amendment to Second Amended and Restated Credit Agreement Effective Date.
(d) As of the Second Amendment to Second Amended and Restated Credit Agreement Effective Date (both prior to and after giving effect to this Amendment) all representations and warranties contained in Section 3 of this Amendment and in Article 3 of the Existing Credit Agreement shall be true and correct in all material respects, except that (i) for purposes of this clause (d), the representations and warranties contained in Section 3.04(a) of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished pursuant to clause (b), to year-end audit adjustments and the Specified LSP Indebtedness Agentabsence of footnotes), respectively, of Section 5.01 of the Existing Credit Agreement, (ii) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and (iii) to the extent that such representations and warranties are already qualified or modified by materiality in the text thereof, they shall be true and correct in all respects.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation Lenders party hereto and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender on or before the Second Amendment to Second Amended and Restated Credit Agreement Effective Date payment of all expenses required to be reimbursed by the Borrower for which invoices have been presented at least two (2) Business Days prior to the proposed Fourth Second Amendment Effective Date specifying its objection thereto. The parties hereto understand to Second Amended and agree that the amendments to the Existing Restated Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (Peloton Interactive, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment This Agreement shall become effective, and the amendments obligations of the Lenders to make Advances hereunder shall become effective, on and as of the Existing Credit Agreement set forth herein are subject to first date (the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;There shall have occurred no Material Adverse Change since September 30, 2012.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Borrower or any of its SubsidiariesSubsidiaries pending or threatened before any court, if such amendment, supplementation, modification, waiver governmental agency or consent arbitrator that (i) would be materially adverse reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the interests date hereof (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the Lenders or transactions contemplated hereby, and there shall have been no change in the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed Disclosed Litigation that any amendment or modification to the definition of the term “would have a Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained applicable in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)transactions contemplated hereby.
(d) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, the reasonable and documented accrued fees and expenses of counsel to the Agent’s receipt ).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2012, and
(iii) No event has occurred and is continuing, or would result from such Advance, that constitutes a Default.
(g) The Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each Effective Date, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each of the Lenders party to this AmendmentLender:
(i) Notes duly executed by Either (x) a counterpart of this Agreement signed on behalf of the Agent, the Borrower and each Borrower Initial Lender or (including, if applicable, any New Borrowers y) evidence satisfactory to the Agent (as defined below)which may include an electronic transmission) in favor that such party has signed a counterpart of each Lender requesting Notes;this Agreement.
(ii) a duly executed Guarantor Joinder and joinder agreement The Notes to the order of the Lenders to the extent requested by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;any Lender pursuant to Section 2.13.
(iii) a duly executed Security Agreement Supplement by each New Loan Party Such documents and all requirements in connection therewith (including lien searchescertificates as the Agent may reasonably request relating to the organization, any certificated equity existence and related powers, UCC filings and as applicable, good standing of the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);Company.
(iv) a certificate of each Certified copies of the Loan Parties signed by a Responsible Officerresolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, dated and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;Notes.
(v) a A certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization this Agreement and the continued valid existence Notes and good standing in the state of its organization;other documents to be delivered hereunder.
(vi) written opinion(s) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the New Loan PartiesBorrower, dated substantially in the form of Exhibit D hereto and as of to such other matters as any Lender through the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentrequest.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Required Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of credit agreement evidencing the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentBorrower SOFR Loan Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Parent Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior receive evidence of concurrent consummation of a related amendment to the Fourth credit agreement evidencing the Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022 (and as amended, restated, supplemented or otherwise modified from time to time), among the Telephone and Data Systems, Inc. and Export Development Canada, as lender, which shall be in form and substance reasonably acceptable to the Administrative Agent; and
(h) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and except to the extent required therebythat such representations and warranties specifically refer to an earlier date, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers which case they shall have paid in full all fees payable in connection with this Amendment be true and correct as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agentsuch earlier date, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Second Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Second Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition shall receive evidence of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the concurrent consummation of a related amendment among (i) Telephone and Data Systems, Inc. and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, and (ii) the Specified LSP Acquisition Borrower and the effectiveness of this AmendmentToronto Dominions (Texas) LLC, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent)as administrative agent, without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.;
(ec) The the Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, received payment of all documentation reasonable and other information required by regulatory authorities under applicable “know your customer” invoiced out‑of‑pocket fees and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived expenses incurred by the Administrative Agent, Agent and its Affiliates (including the Borrowers shall have paid all reasonable and documented out-of-pocket invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent in reasonable detail, and one local counsel in each relevant jurisdiction), in connection with the preparation, negotiation, execution, delivery and administration of this Second Amendment; and
(directly to such counsel if requested by d) each of the Administrative Agent) representations and warranties made in this Second Amendment shall be true and correct in all material respects (or, to the extent invoiced prior any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the date Second Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Second Amendment as if such representations and warranties were being made on and as of this Amendmentthe Second Amendment Effective Date, plus except to the extent that such additional amounts representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such feesearlier date, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality representations and warranties contained in subsections (a) and (b) of Section 5.05 of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior refer to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand most recent statements furnished pursuant to subsections (a) and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateb), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofrespectively, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. 2.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section 1 hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions (on or before the date hereof:
A. The Company and the Requisite Lenders shall have indicated their consent by the execution and delivery of such satisfaction being the “Fourth signature pages to the Agent.
B. The Company shall have paid at least $14,140,000 to the Administrative Agent for distribution to the Term Loan Lenders which consists of (i) a voluntary prepayment of Term Loans equal to $14,000,000, plus (ii) the prepayment premium of 1.0% pursuant to Section 2.13(d) of the Credit Agreement.
C. Administrative Agent shall have received, for distribution to all Term Loan Lenders executing this Amendment Effective Date” so long as such date occurs on or prior to December 315:00 p.m. (New York City time) on February 28, 2024):
(a) The 2003, an amendment fee equal to 0.125% of such Lenders' outstanding Term Loans immediately prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth First Amendment Effective Date and signed after taking into effect the principal payment contemplated by Section 2.1B above.
D. The Administrative Agent shall have received a Responsible Officer favorable written opinion of each New Loan PartyFried ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Credit Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;.
(vii) evidence that E. Company shall have paid all fees and other actions, recordings amounts due and filings that the Administrative Agent may deem necessary payable on or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that prior to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth First Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required therebyinvoiced, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full reimbursement or other payment of all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel expenses required to the Administrative Agent (directly to such counsel if requested be reimbursed or paid by the Administrative Agent) to the extent invoiced prior to Company hereunder or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality under any other Credit Document.
F. As of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth First Amendment Effective Date, (ii) after giving effect to this Amendment, the representations and warranties contained herein and in the other Credit Documents shall be deemed to become effective true, correct and complete in all material respects on and as of the Fourth First Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness same extent as though made on and the funding thereofas of that date, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior except to the consummation extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date. FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT 10
G. As of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth First Amendment Effective Date, no event shall have occurred and be continuing that would constitute an Event of Default or a Default.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Ipc Acquisition Corp)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on precedent have been satisfied or prior to December 31, 2024):waived:
(a) The Except as disclosed in filings made by the Company with the SEC, press releases and other public disclosures prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;date hereof, there shall have occurred no Material Adverse Change since December 31, 2017.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously material governmental and third party consents and approvals necessary in connection with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions transactions contemplated hereby shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)have been obtained.
(d) The Administrative Agent’s receipt Company shall have paid all accrued and invoiced fees and expenses of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders (including the accrued and in form invoiced fees and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements expenses of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this AmendmentEffective Date.
(e) On the Effective Date, plus such additional amounts of such fees, charges and disbursements as the following statements shall constitute its reasonable estimate of such fees, charges and 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 Borrowers true and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the proposed Fourth Amendment Effective Date specifying its objection theretoDate.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel) .
(g) The Company shall have terminated the commitments, and paid in full all accrued and unpaid amounts, under the Company’s Amended and Restated Credit Agreement dated as of September 30, 2014 (the “Existing Credit Agreement”). The parties hereto understand and agree Each of the Lenders that the amendments is a party to the Existing Credit Agreement set forth herein (i) shall not become effective until hereby waives the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately requirement of prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation notice of termination of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datecommitments under such Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness This Amendment and Waiver shall not be effective until the Administrative Agent shall have received:
(a) executed signature pages from each Borrower, each of the Guarantors, the Administrative Agent and all Lenders of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing DateWaiver;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently copies of all agreements and documents executed or delivered in connection with the effectiveness of this Amendment and Waiver, and any and all consents obtained in accordance with the terms connection herewith, and copies of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).executed Inktomi Agreements;
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with reimbursement by the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or Borrowers via wire transfer for the Administrative Agent (in their respective capacities as such) without of its fees and expenses and for Special Counsel's fees and expenses rendered through the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).date hereof;
(d) The receipt by the Administrative Agent of a retainer in the amount of $150,000 for the Administrative Agent’s 's financial consultant to be applied to such financial consultant's fees on a monthly basis;
(e) receipt by Administrative Agent, on behalf of Special Counsel, via wire transfer, of a retainer in the followingamount of $100,000 to reimburse Administrative Agent for legal fees to be incurred by Special Counsel after the date hereof, each of which shall such retainer to be originals or telecopies held by Special Counsel and applied to Special Counsel's fees on a monthly basis;
(followed promptly by originalsf) unless otherwise specifiedsuch other documents, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party theretoinstruments, each dated the effective date of this Amendment and each certificates, in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingLenders, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may shall deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable appropriate in connection with this Amendment as of and Waiver and the Fourth Amendment Effective Date.transactions contemplated hereby; and
(g) Unless waived receipt by the Administrative Agent, Agent for the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality account of the provisions Lenders an amendment waiver and restructuring fee of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date$100,000.
Appears in 1 contract
Sources: First Amended and Restated Credit Agreement (Pacific Gateway Exchange Inc)
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall have received evidence of concurrent consummation of a related amendment or modification to the definition of credit agreement evidencing the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentBorrower SOFR Loan Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall have received evidence of concurrent consummation of a related amendment to the Parent Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall have received, at least 3 business days prior received evidence of concurrent consummation of a related amendment to the Fourth Amendment Effective Datecredit agreement evidencing the Parent Term Loan Facility, all documentation which shall be in form and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and substance reasonably acceptable to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.Administrative Agent;
(f) The Borrowers the Administrative Agent shall have paid received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the Borrower Term Loan Facility, which shall be in full all fees payable in connection with this Amendment as of form and substance reasonably acceptable to the Fourth Amendment Effective Date.Administrative Agent;
(g) Unless waived by the Administrative Agent shall have received evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of November 9, 2022, among the Telephone and Data Systems, Inc. Export Development Canada, as lender, which shall be in form and substance reasonably acceptable to the Administrative Agent, ;
(h) the Borrowers Administrative Agent shall have paid received payment of all reasonable and documented invoiced out-of-pocket fees and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent (directly to such in reasonable detail, and, if applicable, one local counsel if requested by in each relevant jurisdiction), in connection with the Administrative Agent) to the extent invoiced prior to or on the date preparation, negotiation, execution, delivery and administration of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality i) each of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified representations and warranties made in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented totrue and correct in all material respects (or, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date specifying its objection thereto. The parties hereto understand (as defined below), both before and agree that after giving effect to the amendments to contemplated by this Amendment as if such representations and warranties were being made on and as of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (iia) and (b) of Section 5.05 of the Credit Agreement shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior refer to the documentation effectuating any Specified LSP Indebtedness most recent statements furnished pursuant to subsections (a) and the funding thereof(b), (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation respectively, of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments obligations of the Additional Refinancing Lender to provide the Existing Credit Agreement set forth herein are Amendment No. 3 Refinancing Term Loan Commitments is subject to the satisfaction (or waiver) waiver in accordance with Section 12.12 of each the Credit Agreement of the following conditions precedent (the date upon satisfaction or waiver of such satisfaction conditions, such date being referred to herein as the “Fourth Third Amendment Effective Date” so long as such date occurs ”):
4.1 The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Administrative Agent (or any of its affiliates) and the Borrower to be due and payable on or prior to December 31the Third Amendment Effective Date in the amounts and at the times so specified, 2024):
including reimbursement or payment of all reasonable and documented or invoiced out-of-pocket expenses (a) The prior or substantially simultaneous satisfaction which, in the case of the conditions set forth in Section 3 (as and legal fees, shall be limited to the extent provided therein) reasonable and the occurrence documented or invoiced fees, disbursements and other charges of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness one primary outside counsel and of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory relevant local counsel to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingLenders, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP taken as a Borrower (“New Borrower”whole) and each other New required to be reimbursed or paid by any Loan Party as a Guarantor under any letter agreement previously entered into among UBS Securities LLC and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the Third Amendment Effective Date.
4.2 The representations and warranties set forth in Section 5 of this Amendment and Article V of the Credit Agreement shall be true and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and correct in all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings material respects on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Third Amendment Effective Date, except to the extent applicablesuch representations and warranties expressly relate to an earlier date, certified in which case they were true and correct in all material respects on and as of a sufficiently recent date prior such earlier date, and except that such materiality qualifier shall not be applicable to the Fourth Amendment Effective Date any representation and warranty that is already qualified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;materiality.
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the 4.3 The Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent Additional Refinancing Lender shall have received, at least 3 business days three Business Days (or such shorter period as otherwise agreed) prior to the Fourth Third Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the Third Amendment Effective Date by the Administrative Agent and the Additional Refinancing Lender that they reasonably determine is required by regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the PATRIOT Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the extent required therebyBorrower.
4.4 The Administrative Agent shall have received, the Beneficial Ownership Regulationa legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, that has been reasonably requested in writing by any Lender at least 5 business days prior special counsel to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection Borrower, with this Amendment as of respect to the Fourth Amendment Effective Date.
(g) Unless waived by Borrower addressed to the Administrative Agent, the Borrowers Collateral Agent and the Lenders, dated as of the Third Amendment Effective Date and shall have paid all reasonable be in form and documented out-of-pocket fees, charges and disbursements of counsel substance reasonably satisfactory to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the .
4.5 The Administrative Agent shall have received notice a counterpart signature page of this Amendment, executed and delivered by the Borrower, Holdings, each Subsidiary Guarantor, the Administrative Agent and the Additional Refinancing Lender. The Administrative Agent shall have received from Consenting Term Loan Lenders and each Additional Refinancing Lenders (which, together with the Consenting Term Loan Lenders shall constitute 100% of all Lenders outstanding prior to this Amendment).
4.6 The Administrative Agent shall have received a certificate of each Loan Party, dated the Third Amendment Effective Date signed by the secretary or any assistant secretary of such Lender Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the Third Amendment Effective Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
4.7 At the time of, and immediately after giving effect to, this Amendment, no Default or Event of Default shall have occurred and be continuing or resulted therefrom.
4.8 The Administrative Agent shall have received a certificate, dated the Third Amendment Effective Date and signed on behalf of each of Borrower and Holdings, as applicable, certifying on behalf of the Borrower and Holdings that the conditions precedent set forth in Sections 4.2 and 4.7 have been satisfied or waived on such date.
4.9 The Administrative Agent shall have received a Notice of Borrowing with respect to the Amendment No. 3 Refinancing Term Loans in the form of Exhibit F to the Credit Agreement.
4.10 The Borrower shall have paid to the Administrative Agent, for the ratable account of the Lenders holding Term Loans outstanding prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Third Amendment Effective Date, (ii) shall be deemed to become effective all accrued and unpaid interest on such Term Loans to, but not including, the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Third Amendment Effective Date.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 27, 2014 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with An executed copy of this Amendment as of the Fourth Amendment Effective DateAgreement from each party hereto.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 28, 2013 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with An executed copy of this Amendment as of the Fourth Amendment Effective DateAgreement from each party hereto.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver"EFFECTIVE DATE") of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth Kraft shall have notified each Lender and JPMorgan Chase, as Administrative Agent, in Section 3 (writing as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing proposed Effective Date;.
(b) The Specified LSP Acquisition On the Effective Date, the following statements shall be consummated substantially concurrently with true and JPMorgan Chase, as Administrative Agent, shall have received for the effectiveness account of this Amendment each Lender a certificate signed by a duly authorized officer of Kraft, dated the Effective Date, stating that:
(i) the representations and warranties contained in accordance with the terms Section 4.01 are correct on and as of the Specified LSP Acquisition Agreement Effective Date, and
(as in effect on the first date ii) no event has occurred and is continuing that constitutes a Default or Event of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)Default.
(c) All Specified LSP Indebtedness JPMorgan Chase, as Administrative Agent, shall be funded substantially simultaneously with have received on or before the consummation Effective Date copies of the Specified LSP Acquisition and letter from Kraft dated on or before such day, terminating in whole the effectiveness commitments of this Amendment, subject the banks party to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)Existing Loan Agreement.
(d) The Prior to or simultaneously with the Effective Date, Kraft shall have satisfied all of its obligations under the Existing Loan Agreement including, without limitation, the payment of all loans, accrued interest and fees under the Existing Loan Agreement.
(e) JPMorgan Chase, as Administrative Agent’s receipt of , shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such day, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the JPMorgan Chase, as Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) Notes duly executed by each Borrower (includingCertified copies of the resolutions of the Board of Directors of Kraft approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if applicableany, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;with respect to this Agreement.
(ii) a duly executed Guarantor Joinder A certificate of the Secretary or an Assistant Secretary of Kraft certifying the names and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, true signatures of the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit officers of Kraft authorized to sign this Agreement and the other Loan Documents;documents to be delivered hereunder.
(iii) a duly executed Security Agreement Supplement by each New Loan Party Favorable opinions of counsel (which may be in-house counsel) for Kraft, substantially in the form of Exhibits E-1 and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);E-2 hereto.
(iv) a certificate A favorable opinion of each of the Loan Parties signed by a Responsible Officer▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a)counsel for JPMorgan Chase, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Partyas Administrative Agent, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing substantially in the state form of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateExhibit G hereto.
(f) The Borrowers This Agreement shall have paid in full all fees payable in connection with this Amendment been executed by Kraft, JPMorgan Chase and Citibank, as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agents, Credit Suisse First Boston and Deutsche Bank Securities Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and Documentation Agents, and JPMorgan Chase, as Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket feesbeen notified by each Initial Lender that such Initial Lender has executed this Agreement. JPMorgan Chase, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the as Administrative Agent) to , shall notify Kraft and the extent invoiced prior to or on Initial Lenders of the date which is the Effective Date upon satisfaction of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality all of the provisions of the last paragraph of conditions precedent set forth in this Section 11.3 of the Existing Credit Agreement, for 3.01. For purposes of determining compliance with the conditions specified in this Section 43.01, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender the Lenders unless an officer of JPMorgan Chase, as Administrative Agent, responsible for the Administrative Agent transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that Kraft, by notice to the Lenders, designates as the proposed Fourth Amendment Effective Date Date, specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Kraft Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent shall have received a fully executed copy hereof.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of All necessary consents and approvals to this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)obtained.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of Immediately after giving effect to this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions no Default or Event of Default shall have occurred and be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).continuing. NY-2410437
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party Immediately after giving effect to this Amendment:
(i) Notes duly executed , the representations and warranties set forth in this Amendment, the Credit Agreement, as amended by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability companythis Amendment, and Lone Star Materials & Asphaltafter giving effect hereto, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
Documents to which it is a party (iiii) a duly executed Security Agreement Supplement that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each New Loan Party and all requirements in connection therewith (including lien searchescase, any certificated equity and related powers, UCC filings on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority date as if made on and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Partiesdate, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that except to the extent any such actionsrepresentation and warranty expressly relates to an earlier date, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, in which case such actions, recordings or filings representation and warranty shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days have been true and correct in all material respects (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A.all respects, as administrative agent with respect to any Specified LSP Indebtedness (in applicable) as of such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentearlier date.
(e) The Borrower shall have paid to the Administrative Agent shall have received, at least 3 business days in immediately available funds for the account of each Lender that executes and becomes party to this Amendment on or prior to the Fourth First Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, an amendment fee equal to 0.075% of such ▇▇▇▇▇▇’s Revolving Commitment on the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth First Amendment Effective Date. Such fee will not be subject to any set-off or adjustment, and shall be fully earned on the First Amendment Effective Date and nonrefundable once paid.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable Lenders and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Datebe paid hereunder or under any other Loan Document), (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and before the Borrowing Agent will notify the Lenders of the occurrence of the Fourth First Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Stitch Fix, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent has been fulfilled to the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Administrative Agent:
a. This Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), duly executed and delivered by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the respective parties hereto. The Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood shall have received a fully executed copy hereof and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the each other document required hereunder.
b. The Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation have received an Acknowledgement and Reaffirmation of the Specified LSP Acquisition and the effectiveness of this AmendmentSubordination Agreement from Eastward Fund Management, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent)LLC, without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (includingparty thereto;
c. The Administrative Agent shall have received an Acknowledgement and Reaffirmation of Subordination Agreement in relation to that certain Subordination Agreement dated March 21, if applicable, any New Borrowers 2017 by and between the Creditors (as defined belowtherein) and Administrative Agent, from the Creditors (as defined therein)) in favor of , duly executed by each Lender requesting Notesparty thereto;
(ii) a duly executed Guarantor Joinder d. All necessary consents and joinder agreement approvals to authorize this Amendment shall have been obtained by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New applicable Loan Parties”) joining LSP as a Borrower (“New Borrower”) .
e. No Default or Event of Default shall have occurred and be continuing.
f. After giving effect to this Amendment, each other New the representations and warranties made by each Loan Party as a Guarantor under herein and in the Credit Agreement and the other Loan Documents;
Documents (iiii) a duly executed Security Agreement Supplement that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each New Loan Party and all requirements in connection therewith (including lien searchescase, any certificated equity and related powers, UCC filings on and as applicableof the date hereof, as though made on such date, except to the filing extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of short-form security agreements with such earlier date.
g. The Administrative Agent shall have received the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) results of a certificate of recent lien search in each of the Loan Parties’ jurisdiction of organization, and such searches shall reveal no liens on any of the assets of the Loan Parties signed except for liens permitted by a Responsible Officer, dated Section 7.3 of the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), Credit Agreement.
h. The Administrative Agent shall have received (fi) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a an officer’s certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan PartiesBorrower, dated as of the Fourth Amendment Effective Datedate hereof, addressed with appropriate insertions and attachments, including resolutions authorizing the transactions contemplated hereby the certificate of incorporation or other similar organizational document of each Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower, the bylaws or other similar organizational document of each Borrower and the relevant board resolutions or written consents of each Borrower, (ii) a long form good standing certificate or certificate of status, as the case may be, for each Borrower from its jurisdiction of organization and (iii) good standing certificates as a foreign corporation issued by each jurisdiction in which the failure of the applicable Borrower to be qualified could reasonably be expected to result in a Material Adverse Effect.
i. The Administrative Agent shall have received a Compliance Certificate from a Responsible Officer of the Borrowers, certifying as to the compliance with the requirements of clauses 2.25(e)(iii) and 2.25(e)(iv) of the Credit Agreement, together with all reasonably detailed calculations evidencing compliance with clause 2.25(e)(iv) of the Credit Agreement.
j. The Administrative Agent shall have received, (i) a fully-earned, non-refundable amendment fee in an amount equal to and $37,500, and (ii) all fees, costs and expenses required to be paid pursuant to Section 10 of this Amendment (including the Lenders reasonable and documented fees and disbursements of legal counsel required to be paid thereunder which have been invoiced to Borrowers prior to the date hereof).
k. All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentParent Credit Agreement, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Senior Term Loan Credit Agreement, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Parent Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the credit agreement evidencing the CoBank Borrower Term Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Credit Agreement, dated as of December 17, 2021, among the U.S. Cellular, the lenders party thereto, Citibank, N.A., as administrative agent, and Export Development Canada, as a mandated lead arranger and a lender, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as received payment of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented invoiced out-of-pocket fees and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and invoiced fees, charges and disbursements of a single counsel to for the Administrative Agent (directly to such in reasonable detail, and one local counsel if requested by in each relevant jurisdiction), in connection with the Administrative Agent) to the extent invoiced prior to or on the date preparation, negotiation, execution, delivery and administration of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality h) each of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified representations and warranties made in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented totrue and correct in all material respects (or, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date specifying its objection thereto. The parties hereto understand (as defined below), both before and agree that after giving effect to the amendments to contemplated by this Amendment as if such representations and warranties were being made on and as of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (iia) and (b) of Section 5.05 of the Credit Agreement shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior refer to the documentation effectuating any Specified LSP Indebtedness most recent statements furnished pursuant to subsections (a) and the funding thereof(b), (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation respectively, of Section 6.01 of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCredit Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of parties hereto agree that this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall not be effective until the satisfaction (or waiverwaiver by the Administrative Agent and the Existing Lenders) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent:
(a) The prior or substantially simultaneous satisfaction the Administrative Agent shall have received a copy of this Amendment duly completed, executed and delivered by the conditions set forth in Section 3 (as and to Existing Lenders, the extent provided therein) Borrower and the occurrence of the Fourth Amendment Closing Dateother Loan Parties;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any shall receive evidence of concurrent consummation of a related amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this AmendmentU.S. Cellular Senior Term Loan Facility, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the U.S. Cellular Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Specified LSP Indebtedness Administrative Agent.;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) The each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment 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 as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(f) the Administrative Agent shall have receivedreceived such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party and such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(g) as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least 3 business days two (2) Business Days prior to the Fourth Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel) and (ii) all other compensation required to be paid on or prior to the Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Amendment Effective Date, the Lead Arrangers (as defined in the Engagement Letter) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and a Beneficial Ownership Certification in relation to the extent required thereby, Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably is requested in writing by any Lender at least 5 business days ten (10) Business Days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 29, 2018 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective on April 19, 2016 (the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of “Fifth Amendment Effective Date”), if each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs shall have been satisfied on or prior to December 31such date; provided that if the following conditions are not satisfied by April 19, 2024):2016, this Amendment shall not become effective and shall be of no force or effect with respect to the Credit Agreement:
(ai) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Borrower, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders each Issuing Lender and the Administrative Agent Required Lenders shall have signed a counterpart hereof (in their respective capacities as such).
whether the same or different counterparts) and shall have delivered (cincluding by way of facsimile, pdf or other electronic transmission) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory same to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or ;
(ii) the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldshall have received a favorable customary legal opinion of ▇▇▇▇▇ Day, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party counsel to the extent that a Loan Party is a party theretoCredit Parties, each dated the effective date of this Amendment and each in form and substance satisfactory addressed to the Administrative Agent and each of the Lenders party to the Credit Agreement on the Fifth Amendment Effective Date and dated the Fifth Amendment Effective Date covering such matters incidental to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (Amendment and the transactions contemplated hereby as defined below)) in favor of each Lender requesting Notesthe Administrative Agent may reasonably request;
(iiiii) a duly executed Guarantor Joinder the Administrative Agent shall have received (A) true and joinder agreement by LSPcomplete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, delivery and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under performance of the Credit Agreement and the other Loan Credit Documents;
, in each case as modified by this Amendment, certified as of the Fifth Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (iiiB) a duly executed Security Agreement Supplement by each New Loan Party and all requirements good standing certificates for the Borrower from the jurisdiction in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, which the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions)Borrower is organized;
(iv) a certificate of each all of the Loan Parties signed by a Responsible Officer, dated representations and warranties made pursuant to Section 3 hereof shall be true and correct in all material respects on the Fourth Fifth Amendment Effective Date certifying that no Event of Default under Section 10.1(a)Date, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to this Amendment, with the Specified LSP Acquisition same effect as though such representations and warranties had been made on and as of the Fifth Amendment Effective Date (it being understood and agreed that (x) any Indebtedness incurred representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in connection therewithall material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) a certificate dated since January 2, 2016, nothing shall have occurred (and neither the Fourth Amendment Effective Date and signed by a Responsible Officer Administrative Agent nor the Required Lenders shall have become aware of each New Loan Partyany facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, certifying as appropriate as to: (A) all action taken by such Loan Party or could reasonably be expected to validly authorizehave, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution either individually or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organizationaggregate, a Material Adverse Effect;
(vi) written opinion(sno litigation by any entity (private or governmental) of counsel for shall be pending or threatened in writing with respect to the New Loan PartiesCredit Agreement, dated as of any other Credit Document or any other documentation executed in connection herewith and therewith or the Fourth Amendment Effective Datetransactions contemplated hereby and thereby, addressed to or which the Administrative Agent and shall determine has had, or could reasonably be expected to have, either individually or in the Lenders and in form and substance satisfactory to the Administrative Agentaggregate, a Material Adverse Effect;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent;
(viii) substantially simultaneously with the Fifth Amendment Effective Date, (x) that certain Second Amendment to Credit Agreement in respect of the 2013 Credit Agreement, dated of even date herewith, and (y) the 2016 Term Loan Credit Agreement, dated of even date herewith, in each case, in form and substance reasonably satisfactory to the Administrative Agent Agent, shall have become effective pursuant to their respective terms; and
(directly to such counsel if requested by the Administrative Agentix) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to other documents, information or agreements regarding the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that Borrower as the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Dateshall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (I hereof shall be effective on and as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
date hereof (bthe "FIRST AMENDMENT EFFECTIVE DATE") The Specified LSP Acquisition shall be consummated substantially concurrently with upon the effectiveness of this Amendment in accordance with satisfaction or waiver by the terms Requisite Lenders, on or after the date hereof, of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendmentfollowing conditions:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior for distribution to all Lenders executing this Amendment by no later than January 10, 2005, an amendment fee equal to 0.05% of such Lenders' outstanding Loans and Commitments on the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth First Amendment Effective Date.
(fii) The Borrowers Company, the Borrowers, the other Credit Parties and the Requisite Lenders shall have paid in full all fees payable in connection with this Amendment indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(iii) The Administrative Agent shall have received a certificate from the Company, certifying that as of the Fourth First Amendment Effective Date, the representations and warranties contained in Section III herein and in the other Credit Documents are true and correct in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of the First Amendment Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date.
(giv) Unless waived by the The Administrative Agent, the Borrowers Agent shall have paid received a fully executed Counterpart Agreement from Holdings indicating that Holdings has become a Guarantor and Credit Party under the Credit Agreement and a Grantor under the Pledge and Security Agreement.
(v) The Administrative Agent shall have received (x) pledged stock in AR Holdings and (y) UCC-1 financing statements filed against Holdings.
(vi) The Administrative Agent shall have received all reasonable fees and documented other amounts due and payable on or prior to the First Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or expenses required to be incurred reimbursed or paid by it through the closing proceedings Borrower hereunder or any other Credit Document.
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the vii) The Administrative Agent shall have received notice a certificate from such Lender prior to the proposed Fourth Company, certifying that as of the First Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that (after giving effect to the amendments to the Existing Credit Agreement set forth herein contained herein), no event shall have occurred and be continuing that would constitute an Event of Default or a Default.
(iviii) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Borrowing Credit Agreement as the Administrative Agent will notify or Lenders may have reasonably requested prior to the Lenders of the occurrence of the Fourth Amendment Effective Datedate hereof.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (American Reprographics CO)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment This Agreement shall not become effective, and the amendments no Lender shall be obligated to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of make its Advance hereunder, until each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent is satisfied:
(a) The prior or substantially simultaneous satisfaction Administrative Agent shall have received counterparts of this Agreement duly executed by each of the conditions set forth parties listed on the signature pages hereof (or in Section 3 (the case of any party as and to which such an executed counterpart shall not have been received, the extent provided therein) and the occurrence Administrative Agent shall have received evidence satisfactory to it of the Fourth Amendment Closing Date;execution and delivery of a counterpart hereof by such party).
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented On or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse prior to the interests of the Lenders or Effective Date, the Administrative Agent (shall have received the following in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood form and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and substance reasonably satisfactory to the Administrative Agent):
(i) (A) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, without any waiverand of all documents evidencing other necessary corporate action, consent, amendment or other modification that would be materially adverse and (B) a certificate from the Parent to the interests effect that all governmental and other third party approvals and consents have been obtained for the execution, delivery and performance of the Lenders Loan Documents by any Loan Party and, except for certain governmental and other third party approvals and consents the failure of which to obtain would not have a Material Adverse Effect, for the consummation of the Transaction.
(ii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(iii) Favorable opinions of (A) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Parent as to such matters as the Administrative Agent may reasonably request, (in their respective capacities B) ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Loan Parties as such) without to such matters as the Administrative AgentAgent may reasonably request, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for ACE Bermuda and ACE Tempest as to such matters as the Administrative Agent may reasonably request.
(iv) (A) Year-end audited financial statements of the Parent and its Subsidiaries for the fiscal year ending December 31, 2007, and (B) an unaudited pro forma balance sheet of the Parent and its Subsidiaries which gives effect to the Transaction as if it had occurred on December 31, 2007 (or, if available, at the end of a more recent fiscal quarter of the Parent and the Acquired Company ended prior to the Effective Date).
(v) Evidence that each of ACE Bermuda and ACE Tempest shall have a minimum financial strength rating by A.M. Best of A+.
(vi) A certificate of the Parent, certifying a true and correct copy of (A) the Purchase Agreement and all amendments thereto, and (B) the assignment of the Parent’s prior written consent right under the Purchase Agreement to purchase the outstanding capital stock of the Acquired Company, as of the date of such certificate.
(such consent not to be unreasonably withheldc) There shall have occurred no Material Adverse Change since December 31, delayed or conditioned)2006.
(d) The Administrative Agent’s receipt of the followingThere shall exist no action, each of which shall be originals suit, investigation, litigation or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing proceeding affecting any Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, or any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective DateSubsidiaries pending or threatened before any court, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence governmental agency or arbitrator that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (would be reasonably expected to have a Material Adverse Effect or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) would reasonably be expected to materially adversely affect the date legality, validity or enforceability of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between Loan Document or the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged other transactions contemplated by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDocuments.
(e) The Borrower shall have paid all accrued fees, including any applicable Ticking Fees, owed to the Administrative Agent, the Arranger or the Lenders and all accrued expenses of the Administrative Agent shall have received, at least 3 business days prior (including the accrued fees and expenses of counsel to the Fourth Amendment Effective DateAdministrative Agent and local counsel on behalf of the Administrative Agent), all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and in each case to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Datethen due and payable.
(f) The Borrowers Borrower and the Parent shall have paid available all other funds necessary to consummate the Transaction and concurrently with the Borrowing, the Transaction shall be consummated in full all fees payable accordance with the terms and conditions therefor as set forth in connection with this Amendment as of the Fourth Amendment Effective DatePurchase Agreement.
(g) Unless waived The Borrowing shall occur no later than July 31, 2008.
(h) The Parent shall have assigned to the Borrower or a wholly-owned Subsidiary thereof the Parent’s right under the Purchase Agreement to purchase the outstanding capital stock of the Acquired Company.
(i) The following statements shall be true (and each of the execution of this Agreement, the giving of the Notice of Borrowing and the acceptance by the Administrative Agent, Borrower of the Borrowers proceeds of the Borrowing shall have paid all reasonable constitute a representation and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested warranty by the Administrative Agent) to the extent invoiced prior to or each Loan Party that both on the date of this Amendment, plus the Notice of Borrowing and on the date of the Borrowing such additional amounts statements are true):
(i) the representations and warranties contained in Section 4.01 are correct in all material respects on and as of such feesdate, charges before and disbursements after giving effect to the Borrowing and to the application of the proceeds therefrom, as shall constitute its reasonable estimate though made on and as of such feesdate, charges and disbursements incurred other than any such representations or warranties that, by their terms, refer to be incurred by it through a specific date other than the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality date of the provisions Borrowing, in which case as of such specific date; and
(ii) no Default has occurred and is continuing, or would result from the Borrowing or the application of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the proceeds therefrom.
(j) The Administrative Agent shall have received notice from such Lender prior to other approvals, opinions or documents as the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and or any Lender through the Borrowing Administrative Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datemay reasonably request.
Appears in 1 contract
Sources: Term Loan Agreement (Ace LTD)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment This Agreement and the amendments obligations of the 2019 Incremental Lenders to provide the Existing Credit Agreement set forth herein Term B-2 Loans are subject to the satisfaction (or waiver) waiver in accordance with Section 12.12 of each the Credit Agreement, prior or concurrently with the making of such Term B-2 Loans, of the following conditions precedent (the date upon satisfaction or waiver of such satisfaction conditions, such date being referred to herein as the “Fourth First Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024”):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Administrative Agent (or any of its affiliates) and the Borrower to be due and payable on or prior to the First Amendment Effective Date in the amounts and at the times so specified, including the payment of the Upfront Fee and reimbursement or payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Administrative Agent and Lenders, taken as a whole) required to be reimbursed or paid by any Loan Party under any letter agreement previously entered into among UBS Securities LLC and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the First Amendment Effective Date.
(ii) The representations and warranties set forth in Section 5 of this Agreement and Article V of the Credit Agreement shall be true and correct in all material respects on and as of the First Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
(iii) The Administrative Agent and the 2019 Incremental Lender shall have received, at least 3 business days three Business Days (or such shorter period as otherwise agreed) prior to the Fourth First Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the First Amendment Effective Date by the Administrative Agent and such 2019 Incremental Lenders that they reasonably determine is required by regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the PATRIOT Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective DateBorrower.
(fiv) The Borrowers Administrative Agent shall have paid in full all fees payable in connection with this Amendment as received, a legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Fourth Amendment Effective Date.
Loan Parties and (gy) Unless waived by Stanley, Esrey & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall be addressed to the Administrative Agent, the Borrowers Collateral Agent and the Lenders, dated as of the First Amendment Effective Date and shall have paid all reasonable be in form and documented out-of-pocket fees, charges and disbursements of counsel substance reasonably satisfactory to the Administrative Agent Agent.
(directly to such counsel if requested by the Administrative Agentv) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender prior to a counterpart signature page of this Agreement, executed and delivered by the proposed Fourth Borrower, Holdings, each Subsidiary Guarantor, the Administrative Agent, the 2019 Incremental Lenders.
(vi) The Administrative Agent shall have received a certificate of each Loan Party, dated the First Amendment Effective Date specifying its objection thereto. The parties hereto understand signed by the secretary or any assistant secretary of such Loan Party and agree that attested to by an Authorized Officer of such Loan Party, with the amendments to the Existing Credit Agreement set forth herein following insertions and attachments: (i) shall not become effective until certified organizational authorizations, incumbency certifications, the Fourth certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the First Amendment Effective Date, Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
(vii) At the time of, and immediately after giving effect to, the Borrowing of Term B-2 Loans and the use of proceeds thereof, no Default or Event of Default shall have occurred and be deemed to become effective on continuing or resulted therefrom.
(viii) The Administrative Agent shall have received a certificate, dated the Fourth First Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereofsigned on behalf of each of Borrower and Holdings, (iii) shall become effective as applicable, certifying on the Fourth Amendment Effective Date immediately prior to the consummation behalf of the Specified LSP Acquisition pursuant to Borrower and Holdings that the Specified LSP Acquisition Agreement conditions precedent set forth in paragraphs (ii) and (ivvii) shall not become effective in any event unless the Fourth Amendment Effective Date occurs of this Section 4 have been satisfied or waived on or prior to December 31, 2024. such date.
(ix) The Administrative Agent and shall have received a solvency certificate from the Borrowing Agent will notify the Lenders chief financial officer (or a similar Authorized Officer) of the occurrence Borrower and Holdings in the form of Exhibit J to the Fourth Amendment Effective DateCredit Agreement, which certifies that the Borrower and Holdings and its Restricted Subsidiaries, on a consolidated basis, are, and immediately after giving effect to the Incremental Transactions, will be, Solvent.
(x) The Administrative Agent shall have received a Notice of Borrowing with respect to the Term B-2 Loans in the form of Exhibit F to the Credit Agreement.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment shall not be effective and the amendments each Lender shall not be obligated to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of make its Tranche A-2 Loans unless and until each of the following conditions (precedent has been fulfilled to the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:hereto (the date of such fulfillment, the “First Amendment Effective Date”):
(ia) Notes This Amendment shall have been duly executed and delivered to the Administrative Agent by each the Borrower (includingand the Lenders, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Noteswhich constitute Majority Lenders;
(iib) a duly executed Guarantor Joinder The Administrative Agent shall have received, for the benefit of the Lenders, payment of all accrued and joinder agreement unpaid interest on the Loans since the most recent Payment Date through and including the First Amendment Effective Date (in an amount equal to $1,104,103.78), which interest shall be paid “in kind” by LSPadding and capitalizing such amount to the outstanding principal amount of the Tranche A-1 Term Loans (and the amount so capitalized shall constitute “principal” for all purposes of the Loan Documents from and after the First Amendment Effective Date); 4886-6992-8312 v.3
(c) The Borrower shall have made the quarterly payment to the Purchasers pursuant to Section 2.02(c) of the Revenue Interest Financing Agreement for the fiscal quarter ending June 30, ACE Aggregates2023 in an amount equal to $510,274 (it being agreed that such amount shall be netted from the proceeds of the Tranche A-2 Term Loans funded on the First Amendment Effective Date and such amount shall be remitted by the Administrative Agent to the RIFA Agent for the account of the Purchasers);
(d) The Borrower shall have paid $250,000 to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, LLCas outside counsel to Administrative Agent and the Lenders, a Texas limited liability companyin partial satisfaction of its fees and out-of-pocket expenses accrued to date (it being agreed that such amount shall be netted from the proceeds of the Tranche A-2 Term Loans funded on the First Amendment Effective Date and such amount shall be remitted by the Administrative Agent to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP for the account of the Purchasers);
(e) The representations and warranties in Section 7 of this Amendment, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under Section 7 of the Credit Agreement and elsewhere in the other Loan DocumentsDocuments shall be true, correct and complete in all material respects (unless such representations are already qualified by reference to materiality, Material Adverse Effect or similar language, in which case such representations and warranties 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; provided further that the Specified Default shall be excluded with respect to any representation and warranty;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred At the time of and is continuing both immediately before and immediately after giving effect to this Amendment, no fact or condition exists that could (or could, with the passage of time, the giving of notice, or both) constitute an Event of Default (other than the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;Default); and
(vg) The Administrative Agent shall have received a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer duly executed legal opinion of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, counsel to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, Obligors dated as of the Fourth First Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(eh) The Administrative Agent shall have received from each Obligor (x) a copy of a good standing certificate, dated a date reasonably close to the First Amendment Effective Date, for each such Person and (y) a certificate, dated as of the First Amendment Effective Date, duly executed and delivered by such Person’s Responsible Officer, as to:
(i) resolutions of each such Person’s Board then in full force and effect authorizing the execution, delivery and performance of each Loan Document to be executed by such Person and the Transactions;
(ii) the incumbency and signatures of Responsible Officers authorized to execute and deliver each Loan Document to be executed by such Person; and 4886-6992-8312 v.3
(iii) the full force and validity of each Organic Document of such Person and copies thereof; upon which certificates shall be in form and substance reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively rely until they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior certificate of such Person.
(i) The Administrative Agent shall have received a Borrowing Notice as required pursuant to Section 2.02 of the Credit Agreement.
(j) The Administrative Agent shall have received, at least 3 business days prior in form and substance satisfactory to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable such other documents, instruments and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if agreements as are reasonably requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateLenders.
Appears in 1 contract
Sources: Credit Agreement and Guaranty and Revenue Interest Financing Agreement (Impel Pharmaceuticals Inc)
Conditions Precedent to Effectiveness. The effectiveness of this This Second Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Second Amendment Effective Date”) of when each of the following conditions (shall have been satisfied; provided that if the date following conditions are not satisfied by April 19, 2016, this Second Amendment shall not become effective and shall be of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on no force or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and effect with respect to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Credit Agreement:
(b) 1. The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Borrower, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent and each other Lender shall have signed a counterpart hereof (in their respective capacities as suchwhether the same or different counterparts) without and shall have delivered (including by way of facsimile, pdf or other electronic transmission) the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory same to the Administrative Agent).
2. The Administrative Agent shall have received a favorable customary legal opinion of ▇▇▇▇▇ Day, without any waiver, consent, amendment or other modification that would be materially adverse counsel to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory Credit Parties addressed to the Administrative Agent and each of the Lenders party to the Credit Agreement on the Second Amendment Effective Date and dated the Second Amendment Effective Date covering such matters incidental to this Amendment:Second Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request.
3. The Administrative Agent shall have received (iA) Notes duly executed by each true and complete copies of resolutions of the board of directors of the Borrower (includingapproving and authorizing the execution, if applicable, any New Borrowers (as defined below)) in favor delivery and performance of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Credit Documents;
(iii) a duly executed Security Agreement Supplement , in each case as modified by each New Loan Party and all requirements in connection therewith (including lien searchesthis Second Amendment, any certificated equity and related powers, UCC filings and certified as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Second Amendment Effective Date certifying that no Event by an Authorized Representative and attested to by another Authorized Representative of Default under Section 10.1(a)the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized.
4. All of the representations and warranties made pursuant to Part III hereof shall be true and correct in all material respects on the Second Amendment Effective Date, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to this Second Amendment, with the Specified LSP Acquisition same effect as though such representations and any Indebtedness incurred in connection therewith;
(v) a certificate dated warranties had been made on and as of the Fourth Second Amendment Effective Date (it being understood and signed agreed that (x) any representation or warranty which by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified terms is made as of a sufficiently recent specified date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier true and correct in all material respects only as of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such specified date may be extended by the Administrative Agent in its sole discretion) and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date).
5. Since January 2, 2016, nothing shall have occurred (and neither the date Administrative Agent nor the Required Lenders shall have become aware of provision thereof any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
6. No litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Credit Agreement, any Specified LSP Indebtedness; and
(viii) a duly other Credit Document or any other documentation executed Applicable Intercreditor Agreement between in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent and Bank of Americashall determine has had, N.A.or could reasonably be expected to have, as administrative agent with respect to any Specified LSP Indebtedness (either individually or in such capacitythe aggregate, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agenta Material Adverse Effect.
(e) 7. The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent.
8. Substantially simultaneously with the Second Amendment Effective Date, (x) that certain Fifth Amendment to Amended and Restated Credit Agreement in respect of the Existing Revolving Credit Agreement, dated of even date herewith, and (y) the 2016 Term Loan Credit Agreement, dated of even date herewith, in each case, in form and substance reasonably satisfactory to the Administrative Agent (directly Agent, shall have become effective pursuant to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent)their respective terms.
9. Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender prior to other documents, information or agreements regarding the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that Borrower as the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Dateshall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement provisions set forth herein are subject to in Section 3 hereof shall be effective as of the satisfaction date (or waiverthe "First Amendment Effective Date") of on which each of the following conditions shall have been satisfied (or waived in accordance with Section 12.2 of the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024Credit Agreement):
(a) The prior or substantially simultaneous satisfaction Credit Parties and the Requisite Lenders shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Term Agent.
(b) The Specified LSP Acquisition As of the First Amendment Effective Date, the representations and warranties contained herein and in the other Loan Documents shall be consummated substantially concurrently with the effectiveness of this Amendment true, correct and complete in accordance with the terms all material respects on and as of the Specified LSP Acquisition Agreement (First Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in effect on the first date of execution thereof), which case such representations and such Specified LSP Acquisition Agreement warranties shall not have been amendedtrue, supplemented or modified correct and complete in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any all material respects on and as of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)earlier date.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation As of the Specified LSP Acquisition and the effectiveness of First Amendment Effective Date, after giving effect to this First Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions no event shall have occurred and be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification continuing that would be materially adverse to the interests constitute an Event of the Lenders Default or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)a Default.
(d) The Administrative Agent’s receipt Borrowers shall have paid all fees, costs and expenses owing to counsel to each of the following, each of which shall be originals Agents invoiced to the Borrowers on or telecopies (followed promptly before the date hereof and reimbursable by originals) unless otherwise specified, each properly executed by a Responsible Officer the Borrowers under the terms of the signing Loan Credit Agreement.
(i) CLH shall have become a Credit Party under the Credit Agreement, a Guarantor under the Guaranties, a Grantor under the Security Agreement and a Pledgor under the Pledge Agreement by executing and delivering to Administrative Agent and Term Agent a Counterpart Agreement, in substantially the extent that a Loan Party is a party theretoform of Annex A hereto; (ii) the Agents shall have received (A) sufficient copies of each organizational document executed and delivered by CLH (including, each dated without limitation, the effective date operating agreement of this Amendment and each CLH in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(iAgents) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Dateand, to the extent applicable, certified as of a sufficiently recent date by the appropriate governmental official, each dated the First Amendment Effective Date or a recent date prior thereto; (B) a signature and incumbency certificate of the officers of such Person executing the Loan Documents to which it is a party; (C) resolutions of the board of directors or similar governing body of CLH approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the Related Transaction Document to which it is a party or by which it or its assets may be bound as of the First Amendment Effective Date, certified as of the First Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (D) a good standing certificate from the applicable Governmental Authority of CLH's jurisdiction of organization and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Fourth First Amendment Effective Date by Date; and (v) such other documents as the appropriate state official where such documents are filed in a state office together with certificates from Agents may reasonably request; (E) originally executed copies of the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) favorable written opinion(s) opinions of counsel for the New Loan PartiesCredit Parties as to such other matters as Agents may reasonably request, dated as of the Fourth First Amendment Effective Date, addressed to the Administrative Agent Date and the Lenders and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
Agents, (viiF) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that satisfactory to the extent any such actionsAgents of CLH's authorization to file UCC financing statements, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (yG) the date results of provision thereof a recent search of all effective UCC financing statements made with respect to any Specified LSP Indebtedness; andpersonal or mixed property of CLH and (H) any other document reasonably required by either Agent.
(viiif) a duly executed Applicable Intercreditor The Group Operating Agreement between and the Administrative Agent and Bank of AmericaLeiber Holdings, N.A., as administrative agent with respect LLC operating agreement shall have been amended to any Specified LSP Indebtedness (in such capacity, provide for the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesLeiber Transaction, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective DateAgents.
(g) Unless waived by the Administrative AgentAs permitted to be requested pursuant to Section 6.6, the Borrowers Credit Parties shall have paid all reasonable supplemented Schedule 4.2 and documented out-of-pocket fees, charges and disbursements of counsel Schedule 4.8 to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or form and substance reasonably acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments Agents giving effect to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateLeiber Transaction.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Term Loan Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior Borrower shall have paid all fees required to be paid on or substantially simultaneous satisfaction before the Effective Date, and all reasonable expenses of the conditions set forth in Section 3 (as and Agent to the extent provided therein) and invoiced prior to the occurrence of the Fourth Amendment Closing Effective Date;.
(b) The Specified LSP Acquisition Agent shall be consummated substantially concurrently with have received on or before the effectiveness of this Amendment Effective Date, each dated the same day, the following, in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), form and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and substance reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse :
(i) The Notes made by the Borrower to the interests order of the Lenders or to the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not extent requested by any Lender pursuant to be unreasonably withheld, delayed or conditioned)Section 2.15.
(dii) The Administrative Agent’s receipt Certified copies of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer resolutions of the signing Board of Directors (or equivalent body) of the Borrower approving this Term Loan Party Agreement and the Notes to the extent that a Loan Party is a party be delivered by it, and of its by-laws and certificate of incorporation, together with all amendments thereto, each dated and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Term Loan Agreement and such Notes.
(iii) A copy of a good standing certificate issued by the effective date Secretary of State of the jurisdiction of the Borrower’s jurisdiction of incorporation.
(iv) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment Term Loan Agreement and each the Notes and the other documents to be delivered by it hereunder.
(v) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Assistant General Counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other matters as any Lender through the Agent may reasonably request.
(vi) A favorable opinion of ▇▇▇▇▇ Day, special counsel for the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(ec) The Administrative Agent shall have received, at least 3 business days prior to received on or before the Fourth Amendment Effective Date, Date from each party thereto a counterpart of this Term Loan Agreement signed on behalf of such party.
(d) The Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act and to the extent required therebyAct, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days three Business Days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 31, 2022 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness Notwithstanding the date of execution or delivery of this Amendment, this Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to shall be effective upon the satisfaction (or waiver) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof”), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent Lender in Lender’s sole and each of the Lenders party to this Amendmentabsolute discretion:
(ia) Notes duly Borrowers shall have delivered to Lender, and Lender shall have accepted, an executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor original of each Lender requesting Notesthis Amendment;
(iib) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability companyBorrowers shall have delivered to Lender, and Lone Star Materials & AsphaltLender shall have accepted, LLC a Texas limited liability company an amendment to the Subordination Agreement, in form and substance acceptable to Lender;
(collectivelyc) Borrowers shall have delivered to Lender, and Lender shall have accepted, the “New Fifth Amendment to the Senior Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly documents and instruments executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of , in each New Loan Partycase, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative AgentLender;
(viid) evidence that all other actionsBorrowers shall have delivered to Lender, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents Lender shall have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacityaccepted, the “Specified LSP Indebtedness Agent”) incurred on or about documents and instruments executed in connection with the Fourth Amendment Effective DateSecured Subordinated Indebtedness, and acknowledged by the Loan Partiesin each case, in form and substance reasonably acceptable satisfactory to Lender; provided, however, that the Administrative Agent and copies of executed promissory notes evidencing that portion of the Specified LSP Senior Subordinated Indebtedness Agent.being funded to LDR Médical, S.A.S. shall be delivered promptly after such loans are funded to LDR Médical, S.A.S., which shall occur on or before May 15, 2012;
(e) The Administrative Agent Lender shall have receivedentered into a subordination agreement with the Secured Subordinated Lenders, at least 3 business days prior in form and substance satisfactory to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.Lender;
(f) The Borrowers shall have paid in full reimbursed Lender for all fees payable in connection costs of Lender’s legal counsel associated with the preparation and negotiation of this Amendment as of Amendment, any document or agreement between the Fourth Amendment Effective Date.Senior Lender and the Lender, and any other documents or agreements related thereto;
(g) Unless waived All representations and warranties made by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed Borrower under this Amendment shall be deemed true and correct in all material respects (except to have consented tothe extent already qualified by materiality, approved or accepted or in which case they shall be true and correct in all respects) as of the respective dates, and to the extent, indicated in Section 6 above; and
(h) All corporate proceedings taken in connection with the transactions contemplated by this Amendment and other legal matters incident thereto shall be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateLender.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The Except as disclosed in filings made by the Company with the Securities and Exchange Commission, press releases and other public disclosures prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;date hereof, there shall have occurred no Material Adverse Change since December 31, 2012.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained applicable in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)transactions contemplated hereby.
(d) The Administrative Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued and invoiced fees and expenses of the Agent and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agent’s receipt ).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each Effective Date, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each of the Lenders party to this AmendmentLender:
(i) The Notes duly executed to the order of the Lenders to the extent requested by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;pursuant to Section 2.16.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate A favorable opinion of each ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and General Counsel of the Loan Parties signed by a Responsible OfficerCompany, dated substantially in the Fourth Amendment Effective Date certifying that no Event form of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;Exhibit E hereto.
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer A favorable opinion of each New Loan PartyShearman & Sterling LLP, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to to, as applicable) the Administrative Agent (such date, the “Fifth Amendment Effective Date”):
3.1 This Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
3.2 All necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.
3.3 After giving effect to this Amendment, each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) representations and warranties herein and in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
Documents (iiii) a duly executed Security Agreement Supplement that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each New Loan Party and all requirements in connection therewith (including lien searchescase, any certificated equity and related powers, UCC filings on and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Fifth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred as if made on and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the namesdate, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that except to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness representation and warranty expressly relates to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the an earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Partiesdate, in form which case such representation and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent warranty shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, been true and correct in all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment material respects as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent)earlier date. Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed executed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter either sent (or made available) by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender such Lender, unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the proposed Fourth Fifth Amendment Effective Date specifying its such Lender’s objection thereto. The parties hereto understand thereto and agree that the amendments such objection shall not have been withdrawn by notice to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed Administrative Agent to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs that effect on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Fifth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness Each provision set forth in Article One hereof (other than the provision set forth in Section 16 thereof, which shall be governed by the last sentence of this Article Two) shall be effective as of the date (with respect to each such provision, the “Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiverEffective Date”) of on which each of the following conditions (with respect to each provision shall have been satisfied:
1. The Borrowers, the date of such satisfaction being Administrative Agent, the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction Canadian Agent and the requisite Lenders shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages to the extent provided thereinAdministrative Agent.
2. The Guarantors shall have indicated their consent to the Amendment by the execution and delivery of a Consent (each a “Consent”) attached hereto as Annex I, in the case of Guarantors party to the U.S. Guarantee and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Collateral Agreement (as defined in effect on the first date of execution thereofCredit Agreement), and such Specified LSP Acquisition Agreement shall not have been amendedor attached hereto as Annex II, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any case of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse Guarantors party to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood Canadian Guarantee and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Collateral Agreement (as defined in effect on the first Credit Agreement), in each case dated the date hereof, by and among the applicable Guarantors.
3. The Administrative Agent shall have received (1) an executed legal opinion of execution thereofDebevoise & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to Parent Borrower and the other Loan Parties, and (2) will be deemed to be materially adverse an executed legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., general counsel to the interests of the Lenders Parent Borrower, in each case in form and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and substance reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse .
4. The Parent Borrower shall have used commercially reasonable efforts to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without obtain for the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under Collateral Agent or the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searchesCanadian Collateral Agent, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution customary endorsements or other corporate or organizational action; written comfort regarding existing title insurance policies as they may reasonably request, it being understood that (B1) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings endorsement or filings is required under the terms of the Specified LSP Indebtedness but other comfort is not required by provided on or prior to the terms of the Specified LSP Indebtedness to be provided until Amendment Effective Date after the closing thereofParent Borrower’s commercially reasonable efforts to do so, the delivery of such actions, recordings endorsement or filings other comfort shall not be constitute a condition to the effectiveness hereunder but of any provision of this Amendment and (2) no amendments to any mortgage shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentrequired.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) 5. The Borrowers shall have paid in full all fees payable in connection with (a) to the Administrative Agent, for the pro rata account of the Lenders that were Lenders on the day immediately prior to the Second Amendment Effective Date (the “Existing Lenders”) and that have consented to this Amendment (such Existing Lenders, the “Consenting Existing Lenders”), an amendment fee equal to 0.075% of the Commitments of such Consenting Existing Lenders in effect immediately before the Second Amendment Effective Date, (b) to the Administrative Agent, for the pro rata account of the Lenders that have consented to this Amendment and that are Existing Lenders or affiliates thereof or Approved Funds, in respect of any such Lender’s Commitment in excess of such Lender’s Commitment on the day immediately prior to the Second Amendment Effective Date (such excess, the “Additional Commitment”), a commitment fee equal to 0.10% of such Additional Commitment and (c) to the Administrative Agent, for the pro rata account of any new Lenders as of the Fourth Second Amendment Effective DateDate that has executed an acknowledgement and agreement in respect of this Amendment (other than any Lender that is an affiliate of an Existing Lender or an Approved Fund), in respect of any such Lender’s Commitment as of such date, a commitment fee equal to 0.15% of such Commitments.
(g) Unless waived by 6. The Borrowers shall have paid all fees due to the Administrative Agent, the Borrowers Canadian Agent, the Collateral Agent, the Canadian Collateral Agent or Deutsche Bank Securities Inc. in connection with the Amendment. Notwithstanding anything to contrary set forth above, the amendment set forth in Section 16 of Article One shall be effective (and this Amendment shall be effective with respect to such amendment) as of the date the Required Lenders shall have paid all reasonable indicated their consent to this Amendment by the execution and documented out-of-pocket fees, charges and disbursements delivery of counsel the signature pages to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to , notwithstanding that any condition set forth above may or on the date of this Amendment, plus such additional amounts may not have been satisfied as of such feesdate, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this “Amendment Effective Date” shall be deemed to have consented to, approved or accepted or occurred with respect to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation amendment for purposes of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement first sentence of Article One and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders Section 2 of the occurrence of the Fourth Amendment Effective DateArticle Four.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“First Amendment Effective Date”) of when each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):shall have been satisfied:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectivelyBorrowers, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searchesGuarantors, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders constituting the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and in form and substance satisfactory shall have delivered (including by way of pdf, facsimile or other electronic transmission) the same to the Administrative Agent;
(viib) evidence that all other actions, recordings and filings that the Borrowers shall have paid to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time one of its Affiliates, as applicable) (a) a non-refundable cash amendment fee in dollars for distribution to each Lender which executes and delivers to the Administrative Agent may agree(or its designee) after a counterpart hereof by 12:00 noon (Pacific time) on November 19, 2009, in an amount equal to 15.0 basis points of the Fourth Commitments of such Lender outstanding on the First Amendment Effective Date (as such date may be extended by immediately prior to the Administrative Agent in its sole discretionoccurrence thereof) and (yb) the date of provision thereof with respect all other fees required to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred be paid on or about before the Fourth First Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.;
(ec) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges expenses and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this AmendmentFirst Amendment Effective Date, plus such additional amounts of such reasonable fees, charges expenses and disbursements of counsel to the Administrative Agent as shall constitute its reasonable estimate of such reasonable fees, charges expenses and disbursements of counsel to the Administrative Agent 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 Borrowers and the Administrative Agent). Without limiting ;
(d) after giving effect to this Amendment, the generality representations and warranties of the provisions Loan Parties contained in Section 4 of this Amendment, Article V of the last paragraph of Section 11.3 Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if the applicable representation and warranty is already subject to a materiality standard, shall be true and correct in all respects) on and as of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth First Amendment Effective Date, (ii) except to the extent that such representations and warranties expressly refer to an earlier date, in which case they shall be deemed true and correct in all material respects (or, if the applicable representation and warranty is already subject to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness a materiality standard, shall be true and the funding thereof, correct in all respects) as of such date; and
(iiie) no Default or Event of Default shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation exist and be continuing as of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth First Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Potlatch Corp)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“First Amendment Effective Date”) of when each of the following conditions (shall have been satisfied; provided that if the date following conditions are not satisfied by November 16, 2012, this Amendment shall not become effective and shall be of such satisfaction being no force or effect with respect to the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Credit Agreement:
(ai) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof)Borrower, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent , each Issuing Lender and each other Lender shall have signed a counterpart hereof (such consent not to be unreasonably withheldwhether the same or different counterparts) and shall have delivered (including by way of facsimile, delayed pdf or conditioned), it being understood and agreed that any amendment or modification to other electronic transmission) the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory same to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or ;
(ii) the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheldshall have received favorable customary legal opinion of ▇▇▇▇▇ Day, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party counsel to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory Credit Parties addressed to the Administrative Agent and each of the Lenders party to the Credit Agreement on the First Amendment Effective Date and dated the First Amendment Effective Date covering such matters incidental to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (Amendment and the transactions contemplated hereby as defined below)) in favor of each Lender requesting Notesthe Administrative Agent may reasonably request;
(iiiii) a duly executed Guarantor Joinder the Administrative Agent shall have received (A) true and joinder agreement by LSPcomplete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, delivery and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under performance of the Credit Agreement and the other Loan Credit Documents;
, in each case as modified by this Amendment, certified as of the First Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (iiiB) a duly executed Security Agreement Supplement by each New Loan Party and all requirements good standing certificates for the Borrower from the jurisdiction in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, which the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions)Borrower is organized;
(iv) a certificate of each all of the Loan Parties signed by a Responsible Officer, dated representations and warranties made pursuant to Section 3 hereof shall be true and correct in all material respects on the Fourth First Amendment Effective Date certifying that no Event of Default under Section 10.1(a)Date, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to this Amendment, with the Specified LSP Acquisition same effect as though such representations and warranties had been made on and as of the First Amendment Effective Date (it being understood and agreed that (x) any Indebtedness incurred representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in connection therewithall material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer Administrative Agent shall have received payment from the Borrower, for the account of each Lender that executes and delivers a counterpart signature page to this Amendment prior to 10:00 A.M., New Loan PartyYork City time, certifying as appropriate as to: on November 16, 2012 (A) all action taken by such Loan Party the “Revolver Consent Deadline”), a non-refundable consent fee payable in Dollars in an amount equal to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity 0.075% of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies Commitment of its organizational documents as each such Lender in effect on as of the Fourth First Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(sthe Borrower shall have paid (A) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed all fees required to be paid to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as its affiliate) on the Administrative Agent may agree) after the Fourth First Amendment Effective Date (as such date may be extended pursuant to that certain Fee Letter dated November 5, 2012, by and among the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between Borrower, the Administrative Agent and Deutsche Bank of America, N.A., as administrative agent with respect to Securities Inc. and (B) any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by for the Administrative Agent; and
(vii) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to other documents, information or agreements regarding the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that Borrower as the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Dateshall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective as of this the first date (the “First Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiverEffective Date”) of on which each of the following conditions (shall have been satisfied:
a. the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition Bank shall be consummated substantially concurrently with the effectiveness have received an executed copy of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, from each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Partieshereto, in form and substance reasonably acceptable to the Administrative Agent Bank;
b. the Bank shall have received such other documents, agreements, instruments and other items set forth in Exhibit D hereto, in each case, executed by each of the parties thereto and in form and substance reasonably acceptable to the Bank;
c. the representations and warranties of the Released Borrower herein, and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent representations and warranties of each New Borrower, each Entity Guarantor, the Individual Guarantor, and any other Obligor contained in Sections 7, 8 and 9 of this Amendment and in any other Loan Document shall have received, at least 3 business days prior to be true and correct in all material respects on and as of the Fourth First Amendment Effective DateDate (other than any representation and warranty that includes a materiality qualifier, which shall be true and correct in all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsrespects), including, without limitation, the PATRIOT Act and except to the extent required therebythat 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 (other than any representation and warranty that includes a materiality qualifier, which shall be true and correct in all respects);
d. the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The New Borrowers shall have paid or caused to be paid to the Bank an amendment fee in full the aggregate amount of $100,000.00 (the “Amendment Fee”). The Amendment Fee shall be fully earned and due and payable in cash on the First Amendment Effective Date. The New Borrowers hereby agree that once paid, the Amendment Fee shall not be refundable under any circumstances and shall not be subject to reduction by way of set off or counterclaim;
e. the Bank shall have received payment of all reasonable fees payable and expenses of the Bank incurred in connection with this Amendment as of Amendment, including reasonable counsel’s fees; and
f. the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers Bank shall have paid all reasonable received such other documents and documented out-of-pocket feesagreements, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if including lien searches, as are reasonably requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateBank.
Appears in 1 contract
Sources: Loan Agreement (Royalty Pharma PLC)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and shall become effective on the amendments to date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver"Third Amendment Effective Date") of when each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):shall have been satisfied:
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectivelyBorrowers, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searchesGuarantors, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders constituting the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and in form and substance satisfactory shall have delivered (including by way of pdf, facsimile or other electronic transmission) the same to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (yb) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable Borrowers shall have paid to the Administrative Agent (or one of its Affiliates, as applicable) (a) a non-refundable cash amendment fee in Dollars for distribution to each Lender which executes and delivers to the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received(or its designee) a counterpart hereof by 12:00 noon (Pacific time) on December 21, at least 3 business days prior 2011, in an amount equal to 22.5 basis points of the Fourth Commitment of such Lender outstanding on the Third Amendment Effective Date and (b) all other fees required to be paid on or before the Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.;
(fc) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges expenses and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this AmendmentThird Amendment Effective Date, plus such additional amounts of such reasonable fees, charges expenses and disbursements of counsel to the Administrative Agent as shall constitute its reasonable estimate of such reasonable fees, charges expenses and disbursements of counsel to the Administrative Agent 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 Borrowers and the Administrative Agent). Without limiting ;
(d) after giving effect to this Amendment, the generality representations and warranties of the provisions Loan Parties contained in Section 4 of this Amendment, Article V of the last paragraph of Section 11.3 Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if the applicable representation and warranty is already subject to a materiality standard, shall be true and correct in all respects) on and as of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Third Amendment Effective Date, (ii) except to the extent that such representations and warranties expressly refer to an earlier date, in which case they shall be deemed true and correct in all material respects (or, if the applicable representation and warranty is already subject to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness a materiality standard, shall be true and the funding thereof, correct in all respects) as of such date; and
(iiie) no Default or Event of Default shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation exist and be continuing as of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Third Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Potlatch Corp)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent has been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The prior or substantially simultaneous satisfaction Administrative Agent shall have received a fully executed copy hereof and of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;each other document required hereunder.
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms have received a duly executed copy of the Specified LSP Acquisition Agreement Fourth Amendment Fee Letter dated as of the date hereof.
(as c) The Borrower shall have (i) paid to the Administrative Agent all fees set forth in effect on the first date of execution thereof)Fourth Amendment Fee Letter, (ii) paid all expenses and reimbursements pursuant to Section 11 hereof, to the extent provided to the Borrower at least three (3) Business Days prior to the Fourth Amendment Effective Date, and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse iii) paid to the interests Administrative Agent for the benefit of the Lenders or all interest and revolving loan commitment fees as described in Section 2.9(b) of the Administrative Agent (Credit Agreement in their respective capacities each case accrued and unpaid as such) without of the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)Fourth Amendment Effective Date, it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and Borrower hereby authorizes the Administrative Agent (in their respective capacities as such).
to pay all such fees and expenses pursuant to this clause (c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation a portion of the Specified LSP Acquisition Fourth Amendment Term Loans and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests payment of the Lenders or the Administrative Agent same from such proceeds shall satisfy this clause (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditionedc).
(d) The Administrative Agent’s receipt Agent shall have received, in respect of the followingFourth Amendment Term Loans to be made on the Fourth Amendment Effective Date, each a completed Notice of which Borrowing executed by the Borrower and attaching a funds flow or sources and uses schedule.
(e) All material Governmental Approvals and consents and approvals of, or notices to, shall have been obtained and be in full force and effect (or waived, and if such waiver is materially adverse to the interests of the Lenders, with the consent of the Administrative Agent).
(f) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be originals true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date or telecopies (followed promptly ii) such representations and warranties are qualified by originalsmateriality in the text thereof, in which case they shall be true and correct in all respects.
(g) unless otherwise specifiedUpon giving effect to this Amendment and the incurrence of all Indebtedness contemplated hereby, no Default or Event of Default shall have occurred and be continuing.
(h) To the extent requested by any Lender at least three (3) Business Days prior to the Fourth Amendment Effective Date, such Lender shall have received Notes, in each properly case, duly executed by the Borrower.
(i) The Administrative Agent shall have received (i) a Responsible Officer certificate of each Loan Party, dated Fourth Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C attached to the Credit Agreement, with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party certified, in the case of formation documents, as of a recent date by the secretary of state or similar official of the signing relevant jurisdiction of organization of such Loan Party or that there has been no change to Operating Documents of such Loan Party that were previously delivered to the Administrative Agent (which may be in the form of a certification from such Loan Party that there have been no changes from the Operating Documents previously delivered to the Administrative Agent on the Closing Date), (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the extent that a Amendment and the other Loan Documents to which such Loan Party is a party thereto, each dated and (C) the effective date names, titles, incumbency and signature specimens of this Amendment those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party (which may be in the form of a certification from such Loan Party that there have been no changes from the incumbency and each in form and substance satisfactory signature specimens previously delivered to the Administrative Agent on the Closing Date) and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSPlong form good standing certificate for each Loan Party from its respective jurisdiction of organization.
(j) The Administrative Agent shall have received a Solvency Certificate from the chief financial officer or treasurer of the Borrower, ACE Aggregatescertifying that the Loan Parties, LLC, taken as a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability companywhole are, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, after giving effect to the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) incurrence of all Indebtedness and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated obligations being incurred on the Fourth Amendment Effective Date certifying that no Event will be, Solvent.
(k) The Administrative Agent shall have received the executed legal opinion of Default under Section 10.1(a)(i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (ii) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, Delaware counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent. Such legal opinions shall cover such matters incident to the transactions contemplated by this Amendment as the Administrative Agent may reasonably require.
(l) On the Fourth Amendment Effective Date, (f1) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition transactions contemplated by this Amendment (including the payment of all fees and any expenses, the incurrence of all additional Indebtedness), Liquidity shall be not less than $40,000,000, (2) the Consolidated Total Indebtedness incurred to Recurring Revenue Ratio does not exceed 0.75:1.00 and (3) the Borrower is otherwise in connection therewith;pro forma compliance with the then-applicable financial covenants set forth in Section 7.1 of the Credit Agreement (as amended by this Amendment).
(vm) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan PartyEach Lender shall have received, certifying as appropriate as to: (A) all action taken by such Loan Party prior to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, requested at least 3 business days two (2) Business Days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under requested to comply with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Patriot Act and to the extent required thereby, the Beneficial Ownership RegulationRegulation (including the Beneficial Ownership Certification), that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Dateand a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party.
(fn) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior a certificate of a Responsible Officer of the Borrower certifying as to compliance with the requirements of Section 5.2 of the Credit Agreement and clause (l) above, together with all reasonably detailed calculations evidencing compliance with clause (l) above after giving effect to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand incurrence of all Indebtedness and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until obligations being incurred in connection with the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateAmendment.
Appears in 1 contract
Sources: Credit Agreement (Appian Corp)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions precedent have been satisfied or waived:
(a) Except as disclosed in filings made by the Company with the SEC, press releases and other public disclosures prior to the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to hereof, there shall have occurred no Material Adverse Change since December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;.
(b) The Specified LSP Acquisition There shall be consummated substantially concurrently with exist no action, suit, investigation, litigation or proceeding affecting the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously material governmental and third party consents and approvals necessary in connection with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions transactions contemplated hereby shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)have been obtained.
(d) The Administrative Agent’s receipt Company shall have paid all accrued and invoiced fees and expenses of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders (including the accrued and in form invoiced fees and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements expenses of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this AmendmentEffective Date.
(e) On the Effective Date, plus such additional amounts of such fees, charges and disbursements as the following statements shall constitute its reasonable estimate of such fees, charges and 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 Borrowers true and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the proposed Fourth Amendment Effective Date specifying its objection theretoDate.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel).
(g) The Company shall have terminated the commitments, and paid in full all accrued and unpaid amounts, under the Company’s Credit Agreement dated as of June 6, 2022 (the “Existing Credit Agreement”). The parties hereto understand and agree Each of the Lenders that the amendments is a party to the Existing Credit Agreement set forth herein (i) shall not become effective until hereby waives the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately requirement of prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation notice of termination of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datecommitments under such Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein are at Section I hereof is subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions on or before the date hereof (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024"FOURTH AMENDMENT EFFECTIVE DATE"):
(a) The prior or substantially simultaneous satisfaction Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages hereof to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent.
(b) The Specified LSP Acquisition Company shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse delivered to the interests of the Lenders or the Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will which shall be deemed to be materially adverse a Funding Notice with respect to the interests of the Lenders and the Administrative Agent (in their respective capacities as suchTranche C Term Loans for all purposes hereof).
(c) All Specified LSP Indebtedness Company shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition have paid all fees and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions other amounts due and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred payable on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required therebyto be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, the Beneficial Ownership RegulationGump, that has been Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requested in writing by any Lender at least 5 business days prior to request, dated the Fourth Amendment Effective DateDate and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Borrowers Agent and Lenders shall have paid in full all fees payable in connection with received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel pursuant to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified set forth in this Section 4II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender that who has signed this Amendment previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from deliver such Lender prior Note to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective DateCompany for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 30, 2017 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least 3 business ten days prior to the Fourth Amendment Effective Date, all such documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, including the PATRIOT Act and Act, in each case at least five days prior to the extent required therebyEffective Date.
(vii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been reasonably requested a Beneficial Ownership Certification in writing by any Lender at least 5 business days prior relation to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Datesuch Borrower.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. 2.1 The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section 1 hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions (on or before the date of such satisfaction being hereof:
A. The Borrower, the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):
(a) The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Required Lenders and the Administrative Agent (in Subsidiary Loan Parties shall have indicated their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with consent to this Amendment by the consummation execution and delivery of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory applicable signature pages to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests .
B. As of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Sixth Amendment Effective Date certifying that no Event of Default under Section 10.1(a)Date, (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to this Amendment, the Specified LSP Acquisition representations and any Indebtedness incurred warranties contained herein and in connection therewith;
(v) a certificate dated the Fourth other Loan Documents shall be true, correct and complete in all material respects on and as of the Sixth Amendment Effective Date to the same extent as though made on and signed by a Responsible Officer as of each New Loan Partythat date, certifying except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, correct and complete in all material respects on and as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity earlier date.
C. As of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Sixth Amendment Effective Date, after giving effect to the extent applicablethis Amendment, certified as no event shall have occurred and be continuing that would constitute an Event of Default or a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;Default.
(vi) written opinion(s) of counsel for the New Loan Parties, dated as D. As of the Fourth Sixth Amendment Effective Date, addressed to the Administrative Agent Borrower shall have paid all fees and the Lenders other amounts due and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actionspayable, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that including, to the extent any such actionsinvoiced, recordings reimbursement or filings is required under the terms other payment of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be all out-of-pocket expenses required to be delivered reimbursed or paid by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to Borrower under any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDocument.
(e) The E. Administrative Agent shall have received, at least 3 business days for distribution to all Lenders executing this Amendment by 3:00 p.m. Eastern time on Thursday, March 25, 2004 an amendment fee equal to 0.08% of such Lenders' outstanding Loans and Commitments immediately prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Sixth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior or substantially simultaneous satisfaction As of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Effective Date;, there shall have occurred no Material Adverse Change since December 31, 2016 that has not been publicly disclosed.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms As of the Specified LSP Acquisition Agreement (as in effect on Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent Company or any of its SubsidiariesSubsidiaries pending or, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests knowledge of the Lenders Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition consummation of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)transactions contemplated hereby.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the consummation transactions contemplated hereby, if any, shall have been obtained (without the imposition of the Specified LSP Acquisition and the effectiveness of this Amendment, subject any conditions that are not acceptable to the conditions precedent thereto contained Lenders) and shall remain in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and expenses of the Agent, the Syndication Agents, the Lead Arrangers and the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The Administrative Agent’s receipt representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifieddated such date, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this AmendmentAgent:
(i) To the extent requested by a Lender at least three Business Days prior to the Effective Date, Revolving Credit Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor payable to the order of each Lender requesting Notes;Lender.
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Certified copies of the resolutions of the Board of Directors of the Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit approving this Agreement and the Notes, and of all documents evidencing other Loan Documents;necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes, including, without limitation, copies of the articles of incorporation and bylaws of the Company.
(iii) a duly executed Security A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity the Notes and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);other documents to be delivered hereunder.
(iv) a certificate Favorable opinions of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) one or (g) has occurred and is continuing both immediately before and immediately after giving effect more counsel to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan PartiesCompany, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Specified LSP Indebtedness AgentLenders.
(ev) The Administrative Agent shall have received, at least 3 business days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with An executed copy of this Amendment as of the Fourth Amendment Effective DateAgreement from each party hereto.
(g) Unless waived The Agent shall have received evidence of (i) the termination of the commitments to make extensions of credit to the Company and the Borrowing Subsidiaries by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel lenders party to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 each of the Existing Credit Agreement, for purposes Agreements and (ii) payment in full of determining compliance with the conditions specified in this Section 4, all amounts owing under each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to of the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation Agreements. Each of the Specified LSP Acquisition pursuant Lenders that is a party to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence Existing Credit Agreements hereby waives the requirement of prior notice of termination of the Fourth Amendment Effective Datecommitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective upon the satisfaction of this Amendment the condition set forth in paragraph (a) below; provided that the amendment and restatement of the Original Credit Agreement provided for in Section 2, the authorization set forth in Section 3 and the amendments agreement in Section 5 shall become effective only upon the satisfaction, on a date (the "Effective Date") on or prior to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) February 28, 2004, of each of the following conditions set forth below (the date of and failing such satisfaction being the “Fourth Amendment Effective Date” so long as by such date occurs on date, such amendment and restatement, authorization and agreement shall cease to be of any further force or prior to December 31, 2024effect):
(a) The prior or substantially simultaneous satisfaction of Administrative Agent shall have received counterparts hereof duly executed and delivered by each Tranche B Term Lender and by Tranche A Term Lenders and Revolving Lenders representing the conditions set forth in Section 3 (as and to Majority Banks under the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Original Credit Agreement.
(b) The Specified LSP Acquisition Administrative Agent shall be consummated substantially concurrently with have received such evidence as it shall reasonably have requested as to the effectiveness organization, existence and good standing of this Amendment in accordance with each Credit Party, the terms corporate power and authority of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse Borrower to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of enter into this Amendment and each to perform its obligations hereunder, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:its counsel.
(ic) Notes duly executed by each Borrower The Administrative Agent shall have received favorable written opinions (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower, and (ii) the General Counsel, the Associate General Counsel or an Assistant General Counsel of the Borrower, in each case in a form and substance reasonably satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that covering such matters relating to the extent any such actionsCredit Parties, recordings the Credit Documents or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time Transactions as the Administrative Agent may agree) after or the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance Majority Lenders shall reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agentrequest.
(ed) The Administrative Agent shall have received, at least 3 business days prior received a certificate of an officer of the Borrower to the Fourth Amendment effect that the representations and warranties set forth in Section 4 and in the Restated Credit Agreement are true and correct in all respects material to the rights or interests of the Lenders on and as of the Effective Date.
(e) At the time of and immediately after the Effective Date, the Borrower and the other Credit Parties shall be in compliance with all documentation the terms and provisions set forth herein, in the Restated Credit Agreement and in the other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and Credit Documents in all respects material to the extent required therebyrights or interests of the Lenders, and at the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to time of and immediately after the Fourth Amendment Effective Date, no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate of an officer of the Borrower to that effect.
(f) The Borrowers Administrative Agent shall have paid in full received the Amendment Fees payable by the Borrower pursuant to Section 5 and all other fees payable in connection with this Amendment as of to the Fourth Amendment Effective DateArrangers and the Administrative Agent.
(g) Unless waived The Guarantee and Collateral Agreement shall have been amended to provide that all the Obligations will be secured by a second Lien, junior to the Lien securing the US Term Facility Obligations, the US Revolving Facility Obligations, the US Miscellaneous Obligations and the Collateral Agent Obligations, by all the US Facilities Pledged Collateral and the US Facilities Article 9 Collateral (other than any such US Facilities Article 9 Collateral constituting Indenture Properties or "manufacturing facilities", as defined in the Swiss Franc Note Agreement, to the extent the securing of the ABL Facilities Obligations with such Collateral would require that Indebtedness under the Indentures be ratably secured), and by the Administrative AgentBorrower's headquarters building in Akron, Ohio;
(h) The US Term Facility Agreement and the US Revolving Facility Agreement shall have been amended to require that (i) if proceeds from borrowings under the Restated Credit Agreement pursuant to commitments becoming effective substantially concurrently with the Effective Date shall exceed $300,000,000, the Borrowers Borrower shall have paid all reasonable prepay loans, cash collateralize reimbursement obligations in respect of letters of credit and documented reduce commitments under the US Term Facility Agreement and the US Revolving Facility Agreement in an aggregate amount equal to 100% of such proceeds in excess of $300,000,000, net of the aggregate fees and out-of-pocket feesexpenses paid by the Borrower in connection with the borrowings under the Restated Credit Agreement and the related bank amendments and (ii) the Borrower shall apply 50% of the Net Cash Proceeds of incurrences or issuances of Senior Subordinated-Lien Indebtedness to prepay loans, charges cash collateralize reimbursement obligations in respect of letters of credit and disbursements of counsel reduce commitments under the US Term Facility Agreement and the US Revolving Facility Agreement.
(i) The US Term Facility Agreement, the US Revolving Facility Agreement and the European Facilities Agreement shall have been or shall simultaneously be amended in a manner reasonably satisfactory to the Administrative Agent (directly to such counsel if requested by permit the Administrative Agent) to the extent invoiced prior to or on the date incurrence, issuance and sale of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers Senior Subordinated-Lien Indebtedness and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreementother transactions contemplated hereby, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed case in a manner substantially corresponding to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Original Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Dateeffected hereby, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024extent applicable. The Administrative Agent and the Borrowing Agent will shall notify the Lenders of when it determines that the occurrence of foregoing conditions have been satisfied and that this Amendment and the Fourth Amendment Effective DateRestated Credit Agreement have become fully effective, and such notice shall be conclusive and binding upon the Lenders.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Conditions Precedent to Effectiveness. The effectiveness of this This Amendment and the amendments to the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver) of shall not be effective until each of the following conditions (precedent have been fulfilled to the date satisfaction of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):Administrative Agent:
(a) This Amendment shall have been duly executed and delivered by the respective parties hereto. The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Administrative Agent shall have received a fully executed copy hereof.
(b) The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of All necessary consents and approvals to this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), obtained by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)Loan Parties.
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of After giving effect to this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions no Default or Event of Default shall have occurred and be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)continuing.
(d) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party After giving effect to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) representations and each other New Loan Party as a Guarantor under warranties herein and in the Credit Agreement and the other Loan Documents;
Documents shall be (iiii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicablequalified by materiality, certified as of a sufficiently recent date prior true and correct in all respects, and (ii) to the Fourth Amendment Effective Date extent not qualified by the appropriate state official where such documents are filed materiality, true and correct in a state office together with certificates from the appropriate state officials as to due organization all material respects, in each case on and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Datedate hereof, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
as though made on such date (vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that except to the extent any that such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness representations and warranties relate solely to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the an earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Partiesdate, in form which case such representations and substance reasonably acceptable to the Administrative Agent warranties shall have been true and the Specified LSP Indebtedness Agentcorrect in all material respects as of such earlier date).
(e) The Administrative Agent shall have received, at least 3 business days prior for the pro rata account of each Lender party to the Fourth Amendment Effective DateCredit Agreement on the date hereof, all documentation a non-refundable amendment fee in an amount equal to $115,000 payable in immediately available funds, which amendment fee shall be fully earned when paid. The foregoing amendment fee shall be credited against the amendment fee payable to such Lenders in connection with the execution and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, delivery of the PATRIOT Act and proposed amendment to the extent required therebyCredit Agreement to, among other things, increase the Beneficial Ownership Regulation, Commitments; provided that has been reasonably requested in writing by nothing contained herein shall be deemed a commitment of any Lender at least 5 business days prior to the Fourth Amendment Effective Dateenter into such amendment.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior the fees costs and expenses required to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition paid pursuant to Section 10 of this Amendment (including the Specified LSP Acquisition Agreement reasonable and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior documented fees and disbursements of legal counsel required to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datebe paid thereunder).
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth herein at Section I hereof are subject to the satisfaction (satisfaction, or waiver) of each , of the following conditions on or before the date hereof (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024"SECOND AMENDMENT CLOSING DATE"):
(a) The prior or substantially simultaneous satisfaction Company, Holdings and Requisite Lenders shall have indicated their consent by the execution and delivery of the conditions set forth in Section 3 (as and signature pages hereof to the extent provided therein) and the occurrence of the Fourth Amendment Closing Date;Agent.
(b) The Specified LSP Acquisition Company shall be consummated substantially concurrently with have received net proceeds from the effectiveness New Company Subordinated Notes of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), not less than $147,000,000 and such Specified LSP Acquisition Agreement proceeds shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), applied as contemplated by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such)this Second Amendment.
(c) All Specified LSP Indebtedness The Agent shall be funded substantially simultaneously with the consummation have received a certificate from an officer of the Specified LSP Acquisition Company stating that as of the Second Amendment Closing Date, the representations and warranties contained in Section III herein and in the effectiveness other Credit Documents are true, correct and complete in all respects on and as of this Amendment, subject the Second Amendment Closing Date to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions same extent as though made on and reasonably satisfactory as of that date, except to the Administrative Agent)extent such representations and warranties specifically relate to an earlier date, without any waiverin which case such representations and warranties are true, consent, amendment or other modification that would be materially adverse to the interests correct and complete in all respects on and as of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)earlier date.
(d) The Administrative Agent’s receipt Agent shall have received a certificate from an officer of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer Company stating that as of the signing Loan Party to the extent that a Loan Party is a party theretoSecond Amendment Closing Date, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) event has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) that would constitute an Event of Default or a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness AgentDefault.
(e) The Administrative Agent shall have received, at least 3 business days prior to received a certificate from an officer of the Fourth Company demonstrating that as of the Second Amendment Effective Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsthe ratio of total net debt of the Company (defined as Consolidated Total Debt less Company's Cash on hand as of the Second Amendment Closing Date) to pro forma Consolidated Adjusted EBITDA of the Company for the twelve month period ending September 30, including, without limitation, the PATRIOT Act and to the extent required thereby, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to the Fourth Amendment Effective Date2001 (which for purposes of this ratio shall be $89,000,000) shall not exceed 3.75:1.00.
(f) The Borrowers Company shall have paid in full all fees and other amounts due and payable in connection with this on or prior to the Second Amendment as Closing Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Fourth Amendment Effective DateCompany hereunder or under any other Credit Document.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable The Agent and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Lenders shall have received notice from such Lender prior to other documents and information regarding Credit Parties and the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until as the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on Agents or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Datemay reasonably request.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Bridge Agreement shall become effective on and as of this Amendment and the amendments to first date (the Existing Credit Agreement set forth herein are subject to the satisfaction (or waiver“Effective Date”) of each of on which the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or prior to December 31, 2024):precedent have been satisfied:
(a) The prior Borrower shall have paid all fees required to be paid on or substantially simultaneous satisfaction before the Effective Date, and all reasonable expenses of the conditions set forth in Section 3 (as and Agent to the extent provided therein) and invoiced prior to the occurrence of the Fourth Amendment Closing Effective Date;.
(b) The Specified LSP Acquisition Agent shall be consummated substantially concurrently with have received on or before the effectiveness of this Amendment Effective Date, each dated the same day, the following, in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), form and such Specified LSP Acquisition Agreement shall not have been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof) will be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and substance reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse :
(i) The Notes made by the Borrower to the interests order of the Lenders or to the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not extent requested by any Lender pursuant to be unreasonably withheld, delayed or conditioned)Section 2.15.
(dii) The Administrative Agent’s receipt Certified copies of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer resolutions of the signing Loan Party Board of Directors (or equivalent body) of the Borrower approving this Bridge Agreement and the Notes to the extent that a Loan Party is a party be delivered by it, and of its by-laws and certificate of incorporation, together with all amendments thereto, each dated and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Bridge Agreement and such Notes.
(iii) A copy of a good standing certificate issued by the effective date Secretary of State of the jurisdiction of the Borrower’s jurisdiction of incorporation.
(iv) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment Bridge Agreement and each the Notes and the other documents to be delivered by it hereunder.
(v) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Assistant General Counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other matters as any Lender through the Agent may reasonably request.
(vi) A favorable opinion of ▇▇▇▇▇ Day, special counsel for the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(ec) The Administrative Agent shall have received, at least 3 business days prior to received on or before the Fourth Amendment Effective Date, Date from each party thereto a counterpart of this Bridge Agreement signed on behalf of such party.
(d) The Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act and to the extent required therebyAct, the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days three Business Days prior to the Fourth Amendment Effective Date.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and agree that the amendments to the Existing Credit Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the funding thereof, (iii) shall become effective on the Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the Specified LSP Acquisition Agreement and (iv) shall not become effective in any event unless the Fourth Amendment Effective Date occurs on or prior to December 31, 2024. The Administrative Agent and the Borrowing Agent will notify the Lenders of the occurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Senior Bridge Term Loan Credit Agreement (Eastman Chemical Co)