Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”): (a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Committed Loan Notice in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default; (ii) executed counterparts of this Agreement and the Guaranty; (iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance of the Effective Date; (iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with: (A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) [Reserved]; and (C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date; (vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit Q-1; (vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2; (viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R; (ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named; (x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and (xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers. (b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility). (c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement. (d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes. (e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect. (f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto. (g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements. (h) The Arrangers shall have received the Pro Forma Financial Statements. (i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect. (k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement. (l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.
Appears in 2 contracts
Sources: Term Credit Agreement (99 Cents Only Stores LLC), Credit Agreement (99 Cents Only Stores)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be Closing Date is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Credit Parties and (ii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of the General Partner and each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice in accordance with true and complete copy of the requirements hereof provided that such notice shall not include any representation or statement as to the absence bylaws (or existencelimited liability company agreement or other equivalent governing documents) of any Default;the General Partner and each Credit Party as in effect on the Closing Date,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of each Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of the General Partner and each Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of the General Partner and each Credit Party in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Borrowing Base Properties or Borrowing Base Midstream Assets (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of the General Partner and each Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent shall have received a promissory note substantially in the form of Exhibit G executed by the Borrower in favor of each Lender that has requested a Note at least two promissory note, evidencing the Loans owing to such Lender.
(2e) Business Days All Equity Interests directly owned by the Borrower or any Subsidiary Guarantor, in advance each case as of the Effective Closing Date;, shall have been pledged pursuant to the Security Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Security Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank.
(ivf) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of organization, reflecting the absence of Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it that substantially concurrently with entering into the Credit Documents and the initial extensions of credit thereunder on the Closing Date (i) all outstanding indebtedness and other obligations under the Existing Credit Agreements will be repaid or will otherwise be satisfied in full (and all commitments to lend thereunder shall be terminated) and (ii) all Liens and security interests granted in connection with the Existing Credit Agreements will be released and terminated.
(h) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying as to the satisfaction of such condition.
(i) The Administrative Agent (or its counsel) shall have received copies of the Security Agreement, the Mortgages, UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A (including the Swap Intercreditor Agreement) that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.10, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vj) such certificates The Administrative Agent shall have received (i) the Initial Reserve Report and (ii) lease operating statements and production reports with respect to the Oil and Gas Properties evaluated in the Initial Reserve Report in form and substance satisfactory to the Administrative Agent, for the fiscal quarter ended September 30, 2024.
(k) The Borrower and the Subsidiary Guarantors shall have entered into, or otherwise be party to, Required Hedge Agreements, which Required Hedge Agreements shall be in the form of good standing from fixed price swaps at market prices at the applicable secretary of state time entered into, and the Borrower and Subsidiary Guarantors shall have delivered reasonably acceptable evidence of the state foregoing to the Administrative Agent.
(l) The Arrangers shall have received (i) the audited consolidated balance sheet of organization the Borrower and its Subsidiaries as of December 31, 2023 and the related audited consolidated statements of operations, partners’ capital and members’ equity and cash flows for the Fiscal Year then ended, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of each Loan Partyfiscal quarter ending after the date of the most recent audited financial statements provided pursuant to clause (i) above, certificates and the related unaudited consolidated statements of resolutions or other actionoperations, incumbency certificates and/or other certificates partners’ capital and members’ equity and cash flows for the portion of Responsible Officers of each Loan Party as the Fiscal Year then ended (it being understood and agreed that any such financial statements shall be deemed delivered to the extent the Borrower has filed such financial statements with the SEC using the ▇▇▇▇▇ filing system and such reports are publicly available).
(m) On the Closing Date, the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as (or its counsel) shall have received a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties solvency certificate substantially in the form of Exhibit Q-1;H hereto and signed by a Financial Officer of the Borrower.
(viin) an opinion from ▇▇▇▇▇The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance required to be maintained pursuant to the Credit Documents and (ii) caused the Administrative Agent to be named as lender loss payee and/or additional insured under each insurance policy with respect to such insurance, as applicable.
(o) All fees and expenses required to be paid hereunder and under any written agreements with any Arranger and invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇ LLP, Nevada counsel to the Loan Parties substantially Administrative Agent, shall have been paid in the form of Exhibit Q-2;
(viii) a solvency certificate full in cash or netted from the chief financial officer proceeds of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled initial funding under the Loan Documents to be so namedFacility, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangersapplicable.
(bp) All fees The Administrative Agent (or its counsel) and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced Lenders shall have received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, it is understood and agreed that as of the date hereof the Borrower is excluded from the definition of “legal entity customer” under the Beneficial Ownership Regulation; provided further, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(jq) Since October 11, 2011, there The Credit Parties shall not have been any Event, change delivered title information to the Administrative Agent (or occurrence that, individually or together with any other Event, has had or would its counsel) as the Administrative Agent may reasonably be expected require satisfactory to have a Closing Date Material Adverse Effectthe Administrative Agent setting forth the status of title to at least the Title Coverage Minimum.
(kr) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after After giving effect to such qualification)) the Transactions on the Closing Date (including the initial extensions of credit hereunder and as the refinancing of the Effective Date; provided that a failure of any Merger Agreement Representation to Existing Credit Agreements), Availability shall be true and correct shall not result in a failure less than twenty percent (20%) of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger AgreementLoan Limit.
(ls) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date.
(t) The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Borrower in form certifying (a) that the Borrower and substance its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the terms of the Credit Documents, (b) since December 31, 2023, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole and (c) at the time of this Agreement and also after giving effect to any Borrowing on the Closing Date, no Default or Event of Default shall have occurred and be continuing.
(u) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Administrative AgentBorrower shall have received cash proceeds from the issuance of its Equity Interests in an amount not less than $150,000,000 since January 1, certifying to the matters set forth in Section 4.1(c), (j) and (k)2025. Without limiting the generality of the provisions of the last paragraph of Section 9.312.4, for purposes of determining compliance with the conditions specified in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approved, approved or accepted or to be satisfied with, each document or other matter matters required thereunder under this Section 6 to be consented to or approved by or acceptable or satisfactory to the Lenders a 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 Borrowing on the Effective Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
Appears in 2 contracts
Sources: Credit Agreement (Mach Natural Resources Lp), Credit Agreement (Mach Natural Resources Lp)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit Parties, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, Texas counsel to the Credit Parties and (iii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in accordance with effect on the requirements hereof provided that such notice shall not include any representation or statement as Closing Date and at all times since a date prior to the absence date of the resolutions described in clause (or existenceii) of any Default;below,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Borrowing Base Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent shall have received a promissory note substantially in the form of Exhibit H executed by the Borrower in favor of each Lender that has requested a Note at least two promissory note, evidencing the Loans owing to such Lender.
(2e) Business Days in advance The Administrative Agent (or its counsel) shall have received executed copies of the Effective Guarantee, executed by each Person which will be a Guarantor on the Closing Date;.
(ivi) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages (subject to Section 9.9), UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vii) such certificates of good standing from All Equity Interests directly owned by the applicable secretary of state Borrower or any Subsidiary Grantor, in each case as of the state Closing Date, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Grantors in their applicable jurisdictions of each Loan Partyorganization, certificates reflecting the absence of resolutions Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(g) All representations and warranties made by any Credit Party contained herein or in the other actionCredit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, incumbency certificates and/or other certificates in which case such representations and warranties shall have been true and correct in all material respects as of Responsible Officers of each Loan Party such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent may reasonably require evidencing shall have received a certificate of an Authorized Officer of the identityBorrower certifying as to the satisfaction of such condition.
(h) The Administrative Agent shall have received (i) satisfactory audited consolidated financial statements of the Borrower for the fiscal year ended December 31, authority 2019 and capacity satisfactory unaudited consolidated financial statements of the Borrower for each Responsible Officer fiscal quarter thereafter ending at least 45 days prior to the Closing Date and (ii) a pro forma unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date, after giving effect to the initial Borrowing under this Agreement, the application of the proceeds thereof authorized and to act as a Responsible Officer in connection with this Agreement and the other Loan Documents transactions contemplated to which such Loan Party is a party or is to be a party occur on the Effective Closing Date;, certified by the Borrower’s chief financial officer, which shall reflect no Indebtedness other than the Loans made by the Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt) (collectively, the “Closing Date Financials”).
(vii) an opinion from Proskauer Rose, LLP, New York The Administrative Agent shall have received (i) the Initial Reserve Report and California counsel (ii) lease operating statements and production reports with respect to the Loan Parties Oil and Gas Properties evaluated in the Initial Reserve Report, in form and substance satisfactory to the Administrative Agent, for the fiscal year ended December 31, 2019 and for each fiscal quarter ending thereafter ending at least 45 days prior to the Closing Date.
(j) On the Closing Date, the Administrative Agent (or its counsel) shall have received (i) a solvency certificate (giving effect to the Chapter 11 Plan) substantially in the form of Exhibit Q-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) I hereto and signed by a solvency certificate from the chief financial officer Financial Officer of the Borrower and (as ii) a Notice of Borrowing satisfying the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;requirements of Section 2.3(a).
(ixk) The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) caused the Effective Date and that the Collateral Administrative Agent has been to be named as lender loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance insurance, as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangersapplicable.
(bl) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, shall have been paid in full in cash or netted from the proceeds of the initial funding under the Facility, to the extent applicable.
(i) The Administrative Agent (or its counsel) and the Lenders shall have received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(jn) Since October 11, 2011, there The Credit Parties shall not have been delivered title information to the Administrative Agent (or its counsel) as the Administrative Agent may reasonably require satisfactory to the Administrative Agent setting forth the status of title to at least 85% of the PV-9 value (excluding the PV-9 of any Event, change or occurrence that, individually or together with Production Sharing Contracts) of the Borrowing Base Properties (excluding any other Event, has had or would reasonably be expected Oil and Gas Properties subject to have a Closing Date Material Adverse EffectProduction Sharing Contracts) evaluated in the Initial Reserve Report.
(ko) The Merger Agreement Representations and Borrower shall have received, or shall receive simultaneously with the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as occurrence of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Closing Date, unless such failure gives Holdings no less than $450,000,000 in aggregate cash common equity proceeds less the right to terminate its obligations amount of common equity that is issued solely in exchange for loans held by lenders under the Merger AgreementJunior DIP Facility.
(lp) The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Borrower certifying (a) that the Borrower and its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the terms of the Credit Documents, (b) since December 31, 2019, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole, other than any change, event or occurrence, arising individually or in the aggregate, from (i) events that could reasonably be expected to result from the filing or commencement of the Chapter 11 Cases or the announcement of the filing or commencement of the Chapter 11 Cases and (ii) any circumstances or conditions disclosed in writing to the Administrative Agent and the Lenders prior to the Closing Date resulting from or arising out of the COVID-19 pandemic and (c) at the time of the initial Borrowing under this Agreement and also after giving effect thereto no Default or Event of Default shall have occurred and be continuing.
(q) The Administrative Agent shall be reasonably satisfied that after the initial Borrowing under this Agreement on the Closing Date, the application of the proceeds thereof and after giving effect to the other transactions contemplated hereby, Liquidity shall be not less than $300,000,000.
(r) The Administrative Agent shall have received evidence reasonably satisfactory to it that (a) all loans, commitments and other obligations under the DIP Facilities are being repaid in full, the DIP Facilities are being terminated, and the liens securing the DIP Facilities are being released, in each case substantially contemporaneously with the proceeds of the initial Borrowing under this Agreement and (b) allowed 2016 Term Loan Claims, 2017 Term Loan Claims, Second Lien Notes Claims, and Unsecured Notes Claims (each as defined in the Chapter 11 Plan) shall each have been satisfied through the treatment provided for each such claim under the Chapter 11 Plan in accordance with the Chapter 11 Plan. After giving effect to the transactions contemplated hereby, the Borrower and its Subsidiaries shall have no Indebtedness other than the Loans made by the Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt). The Administrative Agent shall have received evidence satisfactory to it that all liens on the assets of the Borrower and its Subsidiaries (other than liens permitted by the Credit Documents) have been (or will be concurrently with the initial funding under the Facility) released or terminated and that duly executed recordable releases and terminations in forms reasonably acceptable to the Administrative Agent with respect thereto have been obtained by the Borrower and its Subsidiaries.
(s) The Bankruptcy Court’s Order (I) Approving The Debtors’ Disclosure Statement, (II) Confirming The Debtors’ Joint Plan Of Reorganization, and (III) Approving the Assumption and Performance Under (A) The Backstop Commitment Agreement and (B) The Restructuring Support Agreement, Docket No. 626 entered in the Chapter 11 Cases shall be in full force and effect, unstayed and final, and shall not have been amended, supplemented or otherwise modified without the written consent of the Administrative Agent.
(t) The Bankruptcy Court shall have entered one or more orders (one of which orders may be the order confirming the Chapter 11 Plan) approving this Agreement and the Credit Documents, in form and substance reasonably satisfactory to the Administrative Agent, certifying which order shall be in full force and effect, unstayed and final, and shall not have been amended, supplemented or otherwise modified without the written consent of the Administrative Agent.
(u) The Chapter 11 Plan and all other related documentation (i) shall be reasonably satisfactory to the matters Administrative Agent, (ii) shall have been confirmed by an order of the Bankruptcy Court, which order shall be satisfactory to the Administrative Agent, which order shall be in full force and effect, unstayed and final, and shall not have been modified or amended without the written consent of the Administrative Agent, reversed or vacated, (iii) all conditions precedent to the effectiveness of the Chapter 11 Plan as set forth therein shall have been satisfied or waived (the waiver thereof having been approved by the Administrative Agent), and the substantial consummation (as defined in Section 4.1(c), (j1101 of the Bankruptcy Code) of the Chapter 11 Plan in accordance with its terms shall have occurred contemporaneously with the Closing Date and (k)iv) the transactions contemplated by the Chapter 11 Plan to occur on the effective date of the Chapter 11 Plan shall have been substantially consummated (as defined in Section 1101 of the Bankruptcy Code) on the Closing Date and substantially contemporaneously with the initial Borrowing hereunder in accordance with the terms of the Chapter 11 Plan and in compliance with applicable law and Bankruptcy Court and regulatory approvals. Without limiting the generality of the provisions of foregoing, the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender Chapter 11 Plan shall not be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.A
Appears in 2 contracts
Sources: Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be Closing Date is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Credit Parties and (ii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of an officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice in accordance with true and complete copy of the requirements hereof provided that such notice shall not include any representation or statement as to the absence bylaws (or existencelimited liability company agreement or other equivalent governing documents) of any Default;such Credit Party as in effect on the Closing Date,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Borrowing Base Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent shall have received a promissory note substantially in the form of Exhibit G executed by the Borrower in favor of each Lender that has requested a Note at least two promissory note, evidencing the Loans owing to such Lender.
(2i) Business Days All Equity Interests directly owned by the Borrower or any Subsidiary Guarantor, in advance each case as of the Effective Closing Date;, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank
(ivii) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Credit Parties in their applicable jurisdictions of organization, reflecting the absence of Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(f) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying as to the satisfaction of such condition.
(g) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages, UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vh) such certificates of good standing from The Administrative Agent shall have received (i) the applicable secretary of state of Initial Reserve Report and (ii) lease operating statements and production reports with respect to the state of organization of each Loan PartyOil and Gas Properties evaluated in the Initial Reserve Report, certificates of resolutions or other actionin form and substance satisfactory to the Administrative Agent, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as for the fiscal quarter ended December 31, 2023.
(i) On the Closing Date, the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as (or its counsel) shall have received a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties solvency certificate substantially in the form of Exhibit Q-1;H hereto and signed by a Financial Officer of the Borrower.
(viij) an opinion from ▇▇▇▇▇The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance required to be maintained pursuant to the Credit Documents and (ii) caused the Administrative Agent to be named as lender loss payee and/or additional insured under each insurance policy with respect to such insurance, as applicable.
(k) All fees and expenses required to be paid hereunder and invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇ LLP, Nevada counsel to the Loan Parties substantially Administrative Agent, shall have been paid in the form of Exhibit Q-2;
(viii) a solvency certificate full in cash or netted from the chief financial officer proceeds of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled initial funding under the Loan Documents to be so namedFacility, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected invoiced at least two (x2) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or Business Days prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the ArrangersClosing Date.
(bl) All fees The Administrative Agent (or its counsel) and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced Lenders shall have received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(jm) Since October 11, 2011, there The Credit Parties shall not have been any Event, change delivered title information to the Administrative Agent (or occurrence that, individually or together with any other Event, has had or would its counsel) as the Administrative Agent may reasonably be expected require satisfactory to have a Closing Date Material Adverse Effectthe Administrative Agent setting forth the status of title to at least eighty-five percent (85%) of the PV-9 value of the Oil and Gas Properties of the Credit Parties evaluated in the Initial Reserve Report.
(kn) The Merger Agreement Representations and the Specified Representations Administrative Agent (or its counsel) shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as have received executed copies of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility Guarantee, executed by each Guarantor on the Effective Closing Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(lo) The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Borrower in form certifying (a) that the Borrower and substance reasonably satisfactory to its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the Administrative Agent, certifying to terms of the matters set forth in Section 4.1(c)Credit Documents, (jb) since December 31, 2023, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole and (k)c) at the time of this Agreement and also after giving effect to any Borrowing on the Closing Date, no Default or Event of Default shall have occurred and be continuing. Without limiting the generality of the provisions of the last paragraph of Section 9.312.4, for purposes of determining compliance with the conditions specified in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approved, approved or accepted or to be satisfied with, each document or other matter matters required thereunder under this Section 6 to be consented to or approved by or acceptable or satisfactory to the Lenders a 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 Borrowing on the Effective Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
Appears in 2 contracts
Sources: Credit Agreement (Infinity Natural Resources, Inc.), Credit Agreement (Infinity Natural Resources, Inc.)
Conditions Precedent to Initial Borrowing. The obligations obligation of each Bank to make its initial Advance on the occasion of the Lenders to make Loans shall be initial Borrowing by the Company on or after the Closing Date is subject to the satisfaction or due waiver in accordance with Section 12.1 of each conditions precedent that (i) an officer of the following conditions precedentCompany shall have delivered to the Agent a certificate stating that (A) the Company has closed its purchase of the fifty percent (50%) interest in the Henkel-Ecolab joint venture previously owned by ▇▇▇▇▇▇ Kommanditgesellschaft auf Aktien (“Henkel”) pursuant to the Master Agreement dated as of December 7, except 2000, as otherwise agreed amended, between the Borrower Company and Henkel, and (B) Henkel elected to have the Administrative Agent purchase price paid in cash, (ii) all commitment, facility, agency and administrative fees provided for under the terms of this Agreement, accrued to the date of such initial Advance, shall have been paid by the Company and (iii) the Agent shall have received on which such conditions are satisfied or waived herein before the Closing Date the following, each dated as of the Closing Date, in accordance with Section 12.1 shall be form and substance satisfactory to the “Effective Date”):Agent and (except for the Notes) in sufficient copies for each Bank:
(a) The Administrative Agent’s receipt Notes payable to the order of the followingBanks, each respectively.
(b) Certified copies of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Committed Loan Notice in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to resolutions of the absence (or existence) Board of any Default;
(ii) executed counterparts Directors of the Company approving this Agreement and the Guaranty;
(iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance Notes of the Effective Date;
Company, and (ivii) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificatesall documents evidencing other necessary corporate or other authorizing action and governmental approvals, if any, representing the Pledged Equity referred with respect to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 Agreement and the Notes.
(c) Signed copies of a certificate of the Secretary or an Assistant Secretary or other Loan Documents appropriate officer or representative of the Company certifying the names and true signatures of the officers or other representatives of the Company authorized to which such Loan Party is a party sign this Agreement and the Notes and the other documents or is certificates to be delivered by the Company pursuant to this Agreement. The Agent may conclusively rely on each such certificate of the Company until the Agent shall receive a party on further certificate of the Effective Date;Secretary or an Assistant Secretary or other representative of the Company canceling or amending the prior certificate of the Company, and submitting the signatures of the officers or other representatives named in such further certificate.
(vid) an opinion from Proskauer RoseA certificate executed by the Treasurer of the Company on behalf of the Company certifying that as of the Closing Date, LLPsince December 31, New York 2000 there has been no material adverse change in the business, financial condition, operations, properties or performance of the Company and California counsel its Subsidiaries, taken as a whole, or in the ability of the Company to perform its obligations under this Agreement or any Note.
(e) Favorable opinions of (i) the Loan Parties General Counsel of the Company in substantially in the form of Exhibit Q-1;D hereto, and (ii) special counsel for the Company in substantially the form of Exhibit E hereto.
(viif) an A favorable opinion from ▇▇▇of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLPcounsel for the Agent, Nevada counsel to the Loan Parties in substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the ArrangersF hereto.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.
Appears in 2 contracts
Sources: Credit Agreement (Ecolab Inc), Credit Agreement (Ecolab Inc)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself and the Secured Parties on the Closing Date, a written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Credit Parties, and (ii) each local counsel specified on Schedule 6(b), in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsels to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below:
(i) a Committed Loan Notice copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in accordance with each case, certified as of a recent date by the requirements hereof provided that such notice shall not include any representation Secretary of State (or statement other similar official) of the jurisdiction of its organization, and a certificate as to the absence good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or existence) of any Defaultother similar official);
(ii) executed counterparts a certificate of this Agreement the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the Guaranty;bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times immediately prior to and after the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and
(iii) a Note executed certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Guarantee shall be in full force and effect.
(e) Except for any items referred to on Schedule 9.13(b):
(i) The Collateral Agreement, all other Security Documents and other documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and none of the Collateral shall be subject to any other pledges, security interests or mortgages, except for Liens permitted under Section 10.2.
(ii) All Equity Interests of the Borrower and all Equity Interests of each Material Subsidiary directly owned by the Borrower or any Subsidiary Guarantor, in favor of each Lender that has requested a Note at least two (2) Business Days in advance case as of the Effective Closing Date;
, shall have been pledged pursuant to the Collateral Agreement (iv) each Collateral Document set forth on Schedule 1.1A except that such Credit Parties shall not be required to be executed on pledge any Excluded Equity Interests) and the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Pledged Equity referred to therein Collateral Agreement, accompanied by instruments of transfer and/or undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank;.
(Biii) [Reserved]; and
Except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (Cindividually) evidence that all other actionsis owing to the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to the Collateral Agreement, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) received all such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit Q-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties theretopromissory notes, together with all material agreements, undated instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent transfer with respect to the Loan Parties; provided, however, that, each of the requirements set forth thereto endorsed in clauses blank.
(iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates All Indebtedness of the Borrower and its wholly owned Domestic Subsidiaries) each of the Restricted Subsidiaries that is owing to any Credit Party shall not constitute conditions precedent be evidenced by the Intercompany Note, which shall be executed and delivered by the Borrower and each of the Restricted Subsidiaries and shall have been pledged pursuant to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable effortsCollateral Agreement, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree Collateral Agent shall have received such Intercompany Note, together with undated instruments of transfer with respect thereto endorsed in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangersblank.
(bf) All fees Each of the Corporate Reorganization and reasonable Merger Transactions, the Junior Lien Note Exchange and documented out-of-pocket expenses required to be paid on or before each other transaction contemplated under the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date Transaction Agreement, shall have been paid in full in cash (which such amountsconsummated, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Dateunder this Agreement, (i) the Equity Contribution shall have been will be consummated; and (ii) the Merger shall be consummated , in all material respects in accordance with the terms of the Merger Transaction Agreement, without giving effect to any modification, consent or waiver thereto that is materially adverse to the interests of the Administrative Agent, the Collateral Agent or the Lenders (in their capacities as such) without the consent of each of the Administrative Agent, the Collateral Agent and the Lenders.
(dg) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower [Intentionally Blank.]
(h) The Administrative Agent shall have received at least $250,000,000 in gross cash proceeds from the issuance (i) true, correct and complete copies of the Senior Notes.
Historical Financial Statements, (eii) The Intercreditor Agreement a pro forma balance sheet as of December 31, 2017, for the Borrower and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, its Restricted Subsidiaries after giving effect to the TransactionTransactions, and (iii) a pro forma capitalization table of the Borrower and the its Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) after giving effect to the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial StatementsTransactions.
(i) On the Closing Date, the Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit J hereto and signed by a Financial Officer of the Borrower.
(j) The Agents shall have received all fees payable thereto or to any Lender (including any agent and arranger in respect of this Facility) on or prior to the Closing Date and, to the extent invoiced at least three (3) Business Days prior to the Closing Date, all other amounts due and payable pursuant to the Credit Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇▇ LLP) required to be reimbursed or paid by the Credit Parties hereunder or under any Credit Document.
(k) The Administrative Agent and the Arrangers Lenders shall have received received, at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing by them at least ten five (105) days Business Days prior to the Effective Closing Date in order to allow the Arrangers, by the Administrative Agent and the Lenders to comply with that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(jl) Since October 11December 31, 20112017, there no change, event, circumstance, development, state of facts, or condition shall not have been any Eventoccurred (or existed, change or occurrence thatas applicable) that would, individually or together with any other Eventin the aggregate, has had or would be reasonably be expected to have a Closing Date Material Adverse Effect.
(km) The Merger Agreement Representations Administrative Agent and each of the Lenders shall have received the Initial Reserve Report and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger AgreementClosing Date Reserve Report.
(ln) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.3(a)(i) or, in the case of a Letter of Credit Extension, the applicable Issuing Bank and the Administrative Agent shall have received a Letter of Credit Application as required by Section 3.2(a).
(o) The Administrative Agent shall have received the Intercreditor Agreement executed and delivered by the Borrower, each Subsidiary Guarantor, and each other representative of the Junior Lien Notes.
(p) The Administrative Agent shall have received Mortgages, executed and delivered by a certificate of a Responsible duly Authorized Officer of the applicable Credit Parties in sufficient counterparts for the prompt recordation thereof, encumbering Mortgaged Properties that constitute Borrowing Base Properties evaluated in the Initial Reserve Report having a PV-10 sufficient to satisfy the Collateral Coverage Minimum.
(q) After giving effect to all Loans to be made and Letters of Credit to be issued hereunder and the consummation of the Transactions on the date of the initial Credit Event, Availability shall be not less than $300,000,000.
(r) The Administrative Agent shall have received (i) customary UCC lien search results with respect to the Borrower and the other Credit Parties in their respective jurisdictions of formation and (ii) county-level real property search results for the counties in which the Borrowing Base Properties are located.
(s) No litigation by any Person or Governmental Authority shall be pending or threatened (i) with respect to the Transaction Agreement or the Transactions contemplated therein, this Agreement or any Credit Document or (ii) that the Administrative Agent shall determine has had, or could reasonably be expected to have, a Material Adverse Effect or materially and adversely affect this Agreement or the Collateral.
(t) The Administrative Agent shall be reasonably satisfied with the environmental condition of the Borrowing Base Properties.
(u) The Administrative Agent shall have received satisfactory title information with respect to Oil and Gas Properties of the Borrower and its Restricted Subsidiaries (including Stone Energy and its Subsidiaries) comprising at least 85% of the PV-10 of all of the Proved Reserves evaluated in the Initial Reserve Report.
(v) The Administrative Agent shall have received copies of insurance certificates, if applicable, evidencing the insurance required to be maintained by the Borrower and the Subsidiaries pursuant to Section 9.3, each of which shall name the Secured Parties as additional insureds on any such liability insurance and name the Collateral Agent as additional loss payee under any such property insurance, in each case in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), .
(jw) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the The Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender the schedule of Hedge Transactions described in Section 8.20 prepared as of a reasonably recent date (not exceeding ten (10) Business Days prior to the Borrowing on Closing Date).
(x) After giving effect to the Effective Date specifying Transactions, none of Holdings, the Borrower or its objection thereto or their Restricted Subsidiaries shall have any outstanding Indebtedness or preferred Equity Interests other than (i) the Loans and Letters of Credit, (ii) the Junior Lien Notes, (iii) the Stone Energy Notes, and (iv) other Indebtedness permitted under Section 10.1.
(y) The Administrative Agent shall have received duly executed mortgage releases and terminations, terminations of any financing statements and terminations of control agreements, with respect to any and all Liens, in each case, encumbering the properties or assets (including Oil and Gas Properties) of the Borrower or its Restricted Subsidiaries (including Stone Energy and its Subsidiaries), including, without limitation, any mortgages, financing statements, control agreements and other security documents securing the Existing Credit Agreements, except to the extent any such Lien constitutes a Permitted Lien.
(z) The Administrative Agent and the Lenders shall have completed with satisfactory results all other business, legal, environmental, tax, financial and accounting due diligence with respect to the Borrower and its Restricted Subsidiaries, Stone Energy and its Subsidiaries and the Transactions. The Administrative Agent shall notify the Borrower, the Issuing Banks and the Lenders of the Closing Date, and such Lender notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not have made available become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 13.1) at or prior to 11:59 p.m., New York City time, on May 31, 2018 (and, in the Administrative Agent event such Lender’s Ratable Portion of conditions are not so satisfied or waived, the Commitments shall terminate at such Borrowingtime).
Appears in 1 contract
Sources: Credit Agreement (Talos Energy Inc.)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Credit Parties (i) dated the Closing Date, (ii) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsiii) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative AgentAgent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in accordance with effect on the requirements hereof provided that such notice shall not include any representation or statement as Closing Date and at all times since a date prior to the absence date of the resolutions described in clause (or existenceii) of any Default;below,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is a Note executed true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Borrower in favor Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Lender that such Credit Party as of a recent date from such Secretary of State (or other similar official), which has requested a Note at least two (2) Business Days in advance of the Effective Date;not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date.
(i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages (subject to the final paragraph of this Section) and each other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vii) such certificates All Equity Interests of good standing from each wholly-owned Material Subsidiary directly owned by the applicable secretary of state Borrower, Falcon GP or any Subsidiary Guarantor, in each case as of the state Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of each Loan Partyorganization.
(f) The Acquisition shall have been consummated, certificates or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of resolutions the Contribution Agreement. The Contribution Agreement shall not have been amended or other action, incumbency certificates and/or other certificates waived in any material respect by PubCo and PubCo shall not have granted any material consent under the Contribution Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of Responsible Officers of each Loan Party as the Lead Arranger and Bookrunner (not to be unreasonably withheld or delayed).
(g) The Specified Contribution Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing Date and the Administrative Agent may reasonably require evidencing shall have received a certificate of an authorized officer of the identityborrower certifying as to the satisfaction of such condition.
(h) The approval of the Stockholder Proposals (other than approval and adoption of the Falcon Minerals 2018 Long Term Incentive Plan) shall have been duly obtained in accordance with the DGCL, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement PubCo’s Organizational Documents and the other Loan Documents to which rules and regulations of NASDAQ (all such Loan Party is a party or is to be a party on terms in this clause (h) that are not defined herein as are defined in the Effective Date;Contribution Agreement).
(vii) an opinion from Proskauer RoseThe Administrative Agent shall have received (a) the audited consolidated balance sheet of Royal Resources L.P. and its Subsidiaries as of December 31, LLP2017, New York and California counsel the related consolidated statements of operations, changes in partners’ capital (deficit) and cash flows for the fiscal year ended December 31, 2017 and (b) the unaudited consolidated balance sheet of Royal Resources L.P. and its Subsidiaries as of March 31, 2018, and the related consolidated statements of operations, changes in partners’ capital (deficit) and cash flows for the three-month period then ended (the “Closing Date Financials”).
(j) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower and its Subsidiaries as of and for the three-month period ending March 31, 2018, prepared after giving effect to the Loan Parties Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).
(k) [Reserved].
(l) On the Closing Date, the Administrative Agent (or its counsel) shall have received (i) a solvency certificate substantially in the form of Exhibit Q-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) J hereto and signed by a solvency certificate from the chief financial officer Financial Officer of the Borrower and (as ii) a Notice of Borrowing (whether in writing or by telephone) satisfying the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;requirements of Section 2.3(a).
(ixm) The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) made commercially reasonable efforts to cause the Effective Date and that the Collateral Administrative Agent has been to be named as loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance insurance, as applicable.
(n) All fees and expenses required to which be paid hereunder and invoiced at least three (3) Business Days before the Collateral Agent Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash or netted from the proceeds of the initial funding under the Facility, to the extent applicable.
(i) is entitled under the Loan Documents to be so named, and The Administrative Agent (iior its counsel) shall have requested received at least three (3) Business Days prior to be so named;
(x) certified copies of the Merger Agreement and schedules Closing Date all documentation and other attachments theretoinformation required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, duly executed by including, the parties theretoPatriot Act, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably has been requested by the Administrative Agent with respect in writing at least ten (10) Business Days prior to the Loan Parties; providedClosing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, howeverat least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(p) On the Closing Date, after giving effect to the Transactions, neither the Borrower nor any of its Subsidiaries shall have any Disqualified Equity or Material Indebtedness for borrowed money other than the Facility, with any existing Indebtedness for borrowed money (including Indebtedness under the DGK Credit Agreement) having been paid in full and the commitments thereunder having been terminated and all liens and security interests released.
(q) The Administrative Agent (or its counsel) shall have received satisfactory title information (including customary title opinions, information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties and Oil and Gas Properties acquired on the Closing Date are located with respect to not less than 50% of the Security PV-9 value of the Borrowing Base Properties on the Closing Date; provided that such timeline may be extended with the consent of the Administrative Agent (not to be unreasonably withheld or delayed).
(r) The Initial Loans made on the Closing Date shall not result in the aggregate amount of all Lenders’ Total Exposures at such time exceeding $92,000,000. Without limiting the generality of the provisions of Section 12.4, for purposes of determining compliance with the conditions specified in this Section 6, each Lender that has signed this Agreement and shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matters required under this Section 6 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 Closing Date specifying its objection thereto. Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than any a lien on Collateral that a Lien on such Collateral may be perfected solely (xA) by the filing of a financing statement under the Uniform Commercial Code or (yB) by the delivery of stock certificates of the Borrower and its wholly Borrower’s Wholly owned Domestic Subsidiaries that are Material Subsidiaries) shall is not constitute conditions precedent to the Credit Extensions or cannot be provided and/or perfected on the Effective Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) after the Borrower’s use of commercially reasonable efforts, efforts to do so without undue burden or costexpense, to provide the provision and/or perfection of security interests in such items on or prior Collateral shall not constitute conditions precedent to the Effective Date if the Borrower agrees to deliverinitial Borrowing under this Agreement, or cause but shall be required to be delivered, such search resultsprovided, documents and instruments, or take or cause and/or perfected within (i) in the case of Mortgages required to be taken such delivered pursuant to the Collateral Coverage Minimum, by the dates provided in the definition of “Collateral Coverage Minimum” and (ii) in the case of all other actions as may be required to perfect such security interests within Collateral not otherwise described in the preceding clause (i), ninety (90) days after following the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the ArrangersClosing Date.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of the Lenders Lender to make Loans shall be after the Effective Date in connection with the initial Borrowing hereunder is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”)::
(a) The Administrative Agent’s receipt of the following, each of which Lender shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by have received a Responsible Officer of the signing Loan Party each guarantee in form and substance reasonably satisfactory to the Administrative Agent:Lender from each of the Parent, Tax Services of America, Inc., Delaware corporation and Hewfant, Inc., a Virginia corporation (together with the Borrower, the “Credit Parties” and each a “Credit Party”).
(b) The Lender shall have received a certificate dated as of a date no later than the Effective Date from the Secretary of each Credit Party certifying as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any agreement, instrument or other document contemplated hereby (each a “Credit Document” and collectively, the “Credit Documents”) and that attached thereto is a true and complete copy of (i) the articles of incorporation of such Credit Party and all amendments thereto certified as of a Committed Loan Notice in accordance with recent date by the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) Secretary of any Default;
State of its jurisdiction of incorporation, (ii) executed counterparts the bylaws of this Agreement such Credit Party and the Guaranty;
all amendments thereto and (iii) a Note executed resolutions adopted by the Borrower in favor Board of each Lender that has requested a Note at least two (2) Business Days in advance Directors of such Credit Party, authorizing the execution, delivery and performance of the Effective Date;Credit Documents to which such Credit Party is a party.
(ivc) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement The Lender shall have been taken, completed or otherwise provided for in received a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing certificate from the applicable secretary Secretary of state State of the state of organization incorporation of each Loan Credit Party, certificates dated as of resolutions or other actiona recent date, incumbency certificates and/or other certificates as to the existence of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;Credit Party.
(vid) The Lender shall have received an opinion from Proskauer Rose, LLP, New York and California of legal counsel to the Loan Credit Parties substantially in the form of Exhibit Q-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (dated as of date no later than the Effective Date and after giving effect to the Transaction) in substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.A.
(e) The Intercreditor Agreement and the ABL Facility Documentation Borrower shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect paid to the Transaction, Lender when due the upfront fee in clause (1) of the second paragraph of the Fee Letter dated as of the date hereof between the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than Lender (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto“Fee Letter”).
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations effectiveness of this Agreement and the Lenders to make Loans shall be initial Borrowing hereunder are subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent’s receipt Agent (or its counsel) and the Lenders (or their counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) and the Lenders (or their counsel) shall have received, on behalf of the followingAdministrative Agent, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit Parties, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, Texas counsel to the Credit Parties and (iii) local counsel in each of which shall be originals or facsimiles jurisdiction where Mortgaged Properties are located, in each case (followed promptly by originalsA) unless otherwise specifieddated the Closing Date, each properly executed by a Responsible Officer of (B) addressed to the signing Loan Party each Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative AgentAgent and the Majority Lenders and covering such customary matters relating to the Credit Parties, this Agreement and the other Credit Documents for transactions of this type. The Borrower and the other Credit Parties hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in accordance with effect on the requirements hereof provided that such notice shall not include any representation or statement as Closing Date and at all times since a date prior to the absence date of the resolutions described in clause (or existenceii) of any Default;below,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Specified Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) Each Lender that has requested a promissory note shall have received a promissory note substantially in the form of Exhibit H executed by the Borrower in favor of each Lender that has requested a Note at least two such Lender, evidencing the Loans owing to such Lender.
(2e) Business Days in advance The Administrative Agent (or its counsel) and the Lenders (or their counsel) shall have received executed copies of the Effective Guarantee, executed by each Person which will be a Guarantor on the Closing Date;.
(ivi) The Administrative Agent (or its counsel) and the Lenders (or their counsel) shall have received copies of the Collateral Agreement, Mortgages in respect of any Specified Properties (subject to Section 9.9), UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent Majority Lenders may deem reasonably necessary to (A) create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent has reasonably requested to be takenfor filing, completed registration or otherwise provided for to satisfy recording by the Collateral Agent (or its designee, which may be counsel to the Majority Lenders) and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;Majority Lenders.
(vii) such certificates of good standing from All Equity Interests directly owned by the applicable secretary of state Borrower or any Subsidiary Grantor, in each case as of the state Closing Date, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Grantors in their applicable jurisdictions of organization, reflecting the absence of Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(g) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates).
(h) The Lenders (or their counsel) shall have received (i) satisfactory audited consolidated financial statements of the Borrower for the fiscal year ended December 31, 2019 and satisfactory unaudited consolidated financial statements of the Borrower for each Loan Partyfiscal quarter thereafter ending at least 45 days prior to the Closing Date and (ii) a pro forma unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date, certificates after giving effect to the initial Borrowing under this Agreement, the application of resolutions the proceeds thereof and to the other transactions contemplated to occur on the Closing Date, certified by the Borrower’s chief financial officer, which shall reflect no Indebtedness other than the Loans made by the Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt) (collectively, the “Closing Date Financials”).
(i) The Lenders (or other actiontheir counsel) shall have received (i) the Initial Reserve Report and (ii) lease operating statements and production reports with respect to the Oil and Gas Properties evaluated in the Initial Reserve Report, incumbency certificates and/or other certificates in each case as delivered to (and accepted by) the First Lien Exit Administrative Agent or the arrangers of Responsible Officers of the First Lien Exit Facility, for the fiscal year ended December 31, 2019 and for each Loan Party as fiscal quarter ending thereafter ending at least 45 days prior to the Closing Date.
(j) On the Closing Date, the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement (or its counsel) and the other Loan Documents to which such Loan Party is Lenders (or their counsel) shall have received (i) a party or is to be a party on the Effective Date;
solvency certificate (vi) an opinion from Proskauer Rose, LLP, New York and California counsel giving effect to the Loan Parties Chapter 11 Plan) substantially in the form of Exhibit Q-1;I hereto and signed by a Financial Officer of the Borrower and (ii) a Notice of Borrowing satisfying the requirements of Section 2.3.
(viik) an opinion from The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance required to be maintained pursuant to the Credit Documents and (ii) caused the Administrative Agent to be named as lender loss payee and/or additional insured under each insurance policy with respect to such insurance, as applicable.
(l) All fees and expenses required to be paid hereunder and invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the Lenders, and Ropes & ▇▇▇▇▇▇▇, ▇ LLP, Nevada as counsel to the Loan Parties substantially Agents, shall have been paid in the form of Exhibit Q-2;
(viii) a solvency certificate full in cash or netted from the chief financial officer proceeds of the Borrower (as of initial funding under the Effective Date and after giving effect Facility, to the Transaction) substantially in the form attached hereto as Exhibit R;extent applicable.
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under The Administrative Agent (or its counsel) and the Loan Documents to be so named, and (ii) Lenders shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(ln) The Administrative Agent shall have received evidence reasonably satisfactory to the Majority Lenders (or their counsel) that the First Lien Exit Administrative Agent has received from the Credit Parties title information setting forth the status of title to at least 85% of the PV-9 value of the Specified Properties evaluated in the Initial Reserve Report and shall have accepted such information.
(o) The Borrower shall have received, or shall receive simultaneously with the occurrence of the Closing Date, no less than $450,000,000 in aggregate cash common equity proceeds (a portion of which proceeds may, for the avoidance of doubt, be deemed received pursuant to netting arrangements with certain lenders (in their respective sole discretion) in respect of obligations of the Borrower to repay amounts owed to such lenders under the Junior DIP Facility).
(p) The Administrative Agent (or its counsel) and the Lenders (or their counsel) shall have received a certificate of a Responsible an Authorized Officer of the Borrower certifying (a) that the Borrower and its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the terms of the Credit Documents, (b) since December 31, 2019, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole, other than any change, event or occurrence, arising individually or in the aggregate, from (i) events that could reasonably be expected to result from the filing or commencement of the Chapter 11 Cases or the announcement of the filing or commencement of the Chapter 11 Cases and (ii) any circumstances or conditions disclosed in writing to the Administrative Agent and the Lenders prior to the Closing Date resulting from or arising out of the COVID-19 pandemic, (c) at the time of the initial Borrowing under this Agreement and also after giving effect thereto no Default or Event of Default shall have occurred and be continuing and (d) the condition precedent set forth in clause (g) of this Section 6 above shall have been satisfied.
(q) The Majority Lenders shall be reasonably satisfied that after the initial Borrowing under this Agreement on the Closing Date, the application of the proceeds thereof and after giving effect to the other transactions contemplated hereby, Liquidity shall be not less than $300,000,000.
(r) The Administrative Agent (or its counsel) and the Lenders (or their counsel) shall have received evidence reasonably satisfactory to the Majority Lenders (or their counsel) that (a) all loans, commitments and other obligations under each DIP Facility are being repaid in full, each DIP Facility is being terminated, and the liens securing each DIP Facility are being released, in each case substantially contemporaneously with the proceeds of the initial Borrowing under this Agreement and (b) allowed 2016 Term Loan Claims, 2017 Term Loan Claims, Second Lien Notes Claims, and Unsecured Notes Claims (each as defined in the Chapter 11 Plan) shall each have been satisfied through the treatment provided for each such claim under the Chapter 11 Plan in accordance with the Chapter 11 Plan. After giving effect to the transactions contemplated hereby, the Borrower and its Subsidiaries shall have no Indebtedness other than the Loans made by the Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt). The Administrative Agent (and their counsel) and the Lenders (and their counsel) shall have received evidence satisfactory to Majority Lenders that all liens on the assets of the Borrower and its Subsidiaries (other than liens permitted by the Credit Documents) have been (or will be concurrently with the initial funding under the Facility) released or terminated and that duly executed recordable releases and terminations in forms reasonably acceptable to the Majority Lenders with respect thereto have been obtained by the Borrower and its Subsidiaries.
(s) [Reserved].
(t) The Bankruptcy Court shall have entered one or more final non-appealable orders (one of which orders may be the order confirming the Chapter 11 Plan) approving the Facility, this Agreement and the other Credit Documents, and authorizing the Borrower to execute, deliver and perform under the Facility, this Agreement and the other Credit Documents, which order shall be in full force and effect, not stayed, reversed or vacated, and, subject to the consent provisions set forth in Section 3.02 of the Restructuring Support Agreement, be in form and substance reasonably satisfactory to the Administrative AgentRequired Consenting Parties (as defined in the Restructuring Support Agreement).
(u) The Chapter 11 Plan and all other related documentation (i) shall have been confirmed by an order of the Bankruptcy Court, certifying which order shall be in full force and effect, unstayed and final, and shall not have been modified or amended without the written consent of the Majority Lenders, reversed or vacated, (ii) all conditions precedent to the matters effectiveness of the Chapter 11 Plan as set forth therein shall have been satisfied or waived (the waiver thereof having been approved by the Majority Lenders), and the substantial consummation (as defined in Section 4.1(c), (j1101 of the Bankruptcy Code) of the Chapter 11 Plan in accordance with its terms shall have occurred contemporaneously with the Closing Date and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for iii) the transactions contemplated by the Loan Documents Chapter 11 Plan to occur on the effective date of the Chapter 11 Plan shall have received notice from such Lender prior to been substantially consummated (as defined in Section 1101 of the Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.Ban
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be Closing Date is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Credit Parties and (ii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice in accordance with true and complete copy of the requirements hereof provided that such notice shall not include any representation or statement as to the absence bylaws (or existencelimited liability company agreement or other equivalent governing documents) of any Default;such Credit Party as in effect on the Closing Date,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party (other than Tidelands Oil Production Company, LLC) in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Borrowing Base Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent shall have received a promissory note substantially in the form of Exhibit G executed by the Borrower in favor of each Lender that has requested a Note at least two promissory note, evidencing the Loans owing to such Lender.
(2i) Business Days All Equity Interests directly owned by the Borrower or any Subsidiary Grantor, in advance each case as of the Effective Closing Date;, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank
(ivi) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Grantors in their applicable jurisdictions of organization, reflecting the absence of Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(f) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying as to the satisfaction of such condition.
(g) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages, UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.10, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vh) such certificates of good standing from The Administrative Agent shall have received (i) the applicable secretary of state of Initial Reserve Report and (ii) lease operating statements and production reports with respect to the state of organization of each Loan PartyOil and Gas Properties evaluated in the Initial Reserve Report, certificates of resolutions or other actionin form and substance satisfactory to the Administrative Agent, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as for the fiscal year ended December 31, 2022.
(i) On the Closing Date, the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as (or its counsel) shall have received a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties solvency certificate substantially in the form of Exhibit Q-1;H hereto and signed by a Financial Officer of the Borrower.
(viij) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of The Administrative Agent shall have received evidence that the Borrower has (as of the Effective Date i) obtained and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that effected all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) caused the Effective Date and that the Collateral Administrative Agent has been to be named as lender loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance insurance, as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangersapplicable.
(bk) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before invoiced, including, without limitation, the Effective Date reasonable and documented fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against or netted from the proceeds of the initial funding under the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules theretoextent applicable.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders 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 Borrowing on the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the following, each this Agreement signed on behalf of which shall be originals such party or facsimiles (followed promptly by originalsii) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably written evidence satisfactory to the Administrative AgentAgent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved].
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i), (ii) and (iii) below:
(i) a Committed Loan Notice copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in accordance with each case, certified as of a recent date by the requirements hereof provided that such notice shall not include any representation Secretary of State (or statement other similar official) of the jurisdiction of its organization, and a certificate as to the absence good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or existence) of any Defaultother similar official);
(ii) executed counterparts a certificate of this Agreement the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the Guaranty;bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(iii) a Note executed certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of the Guarantee and the Collateral Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of the Guarantee and the Collateral Agreement.
(e) All documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by the Borrower Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens having the priority set forth in favor the DIP Order shall have been delivered to the Collateral Agent for filing, registration or recording.
(f) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of each Lender that has requested a Note at least two such earlier date).
(2g) Business Days in advance All “first-day” orders entered by the Bankruptcy Court following the commencement of the Effective Date;Chapter 11 Cases shall have not been reversed, vacated or stayed (except with the consent of the Majority Lenders).
(ivh) each Collateral Document set forth on Schedule 1.1A required to be executed on The Bankruptcy Court shall have entered the Effective Date as indicated on DIP Order and such scheduleDIP Order shall not have been reversed, duly executed by each Loan Party theretovacated or stayed and shall not have been amended, together with:
(A) copies supplemented or otherwise modified without the prior written consent of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Majority Lenders.
(i) The Administrative Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed received (i) a thirteen-week cash flow forecast for the thirteen-week period following the Closing Date attached hereto as Exhibit M (the “Initial Budget”) and (ii) a cash flow forecast prepared on a monthly basis from the Closing Date through the Borrower’s anticipated date of emergence from the Chapter 11 Cases attached hereto as Exhibit N (the “Initial Emergence Budget”).
(j) The Agents shall have received all fees payable thereto or otherwise provided for to any Lender (including any agent and arranger in a manner reasonably satisfactory respect of this DIP Facility) on or prior to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan PartyClosing Date and, 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in extent invoiced, all other amounts due and payable pursuant to the form Credit Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of Exhibit Q-1;
all reasonable out-of-pocket expenses (vii) an opinion from ▇▇▇▇including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to reimbursed or paid by the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, Credit Parties hereunder or under each insurance policy with respect to such insurance as to which the Collateral Agent any Credit Document.
(i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the The Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced have received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
Patriot Act that has been requested not less than five (j5) Since October 11Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, 2011at least five (5) days prior to the Closing Date, there any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall not have been any Event, change or occurrence received such Beneficial Ownership Certification (provided that, individually or together with any other Eventupon the execution and delivery by such Lender of its signature page to this Agreement, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
the condition set forth in this clause (kii) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation deemed to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreementsatisfied).
(l) After giving effect to any prepayment of Loans on the Closing Date, the amount of the Available Commitment shall be at least $75,000,000.
(m) The Administrative Agent Borrower shall have received a certificate entered into Hedge Transactions with hedge counterparties with respect to not less than 80% of a Responsible Officer their reasonably anticipated monthly projected production of oil from Proved Developed Producing Reserves for each of the Borrower twelve (12) full months immediately following the Petition Date, and such Hedge Transactions shall continue to be in form and substance reasonably satisfactory to effect on the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (j) and (k)Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for For purposes of determining compliance with the conditions specified in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approvedapproved or accepted, 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 the Lenders a Lender unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received written notice from such Lender prior to the Borrowing on the Effective proposed Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
Appears in 1 contract
Sources: Senior Secured Superpriority Debtor in Possession Credit Agreement (EP Energy LLC)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be Closing Date is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Credit Parties and (ii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice in accordance with true and complete copy of the requirements hereof provided that such notice shall not include any representation or statement as to the absence bylaws (or existencelimited liability company agreement or other equivalent governing documents) of any Default;such Credit Party as in effect on the Closing Date,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party (other than Tidelands Oil Production Company, LLC) in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Credit Party in each jurisdiction where such Credit Party owns material Borrowing Base Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent shall have received a promissory note substantially in the form of Exhibit G executed by the Borrower in favor of each Lender that has requested a Note at least two promissory note, evidencing the Loans owing to such Lender.
(2i) Business Days All Equity Interests directly owned by the Borrower or any Subsidiary Grantor, in advance each case as of the Effective Closing Date;, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of transfer and/or undated powers endorsed in blank
(ivi) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Grantors in their applicable jurisdictions of organization, reflecting the absence of Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(f) All representations and warranties made by any Credit Party contained herein or in the other Credit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying as to the satisfaction of such condition.
(g) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages, UCC financing statements and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.10, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vh) such certificates of good standing from The Administrative Agent shall have received (i) the applicable secretary of state of Initial Reserve Report and (ii) lease operating statements and production reports with respect to the state of organization of each Loan PartyOil and Gas Properties evaluated in the Initial Reserve Report, certificates of resolutions or other actionin form and substance satisfactory to the Administrative Agent, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as for the fiscal year ended December 31, 2022.
(i) On the Closing Date, the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as (or its counsel) shall have received a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties solvency certificate substantially in the form of Exhibit Q-1;H hereto and signed by a Financial Officer of the Borrower.
(viij) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of The Administrative Agent shall have received evidence that the Borrower has (as of the Effective Date i) obtained and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that effected all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) caused the Effective Date and that the Collateral Administrative Agent has been to be named as lender loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance insurance, as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangersapplicable.
(bk) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, shall have been paid in full in cash or netted from the proceeds of the initial funding under the Facility, to the extent applicable.
(l) The Administrative Agent (or its counsel) and the Lenders shall have received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(jm) Since October 11, 2011, there The Credit Parties shall not have been delivered title information to the Administrative Agent (or its counsel) as the Administrative Agent may reasonably require satisfactory to the Administrative Agent setting forth the status of title to at least eighty-five percent (85%) of the PV-9 value (excluding the PV-9 of any Event, change or occurrence that, individually or together with Production Sharing Contracts) of the Borrowing Base Properties (excluding any other Event, has had or would reasonably be expected Oil and Gas Properties subject to have a Closing Date Material Adverse EffectProduction Sharing Contracts) evaluated in the Initial Reserve Report.
(kn) The Merger Agreement Representations and the Specified Representations Administrative Agent (or its counsel) shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as have received executed copies of the Effective Date; provided that Guarantee, executed by each Person which will be a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility Guarantor on the Effective Closing Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(lo) The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Borrower in form certifying (a) that the Borrower and substance reasonably satisfactory to its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the Administrative Agent, certifying to terms of the matters set forth in Section 4.1(c)Credit Documents, (jb) since December 31, 2022, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole and (k)c) at the time of this Agreement and also after giving effect to any Borrowing on the Closing Date, no Default or Event of Default shall have occurred and be continuing. Without limiting the generality of the provisions of the last paragraph of Section 9.312.4, for purposes of determining compliance with the conditions specified in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approved, approved or accepted or to be satisfied with, each document or other matter matters required thereunder under this Section 6 to be consented to or approved by or acceptable or satisfactory to the Lenders a 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 Borrowing on the Effective Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) Sidley Austin LLP, counsel to the Credit Parties and (ii) local counsel in each jurisdiction where Mortgaged Properties are located, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsC) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(i) that attached thereto is a Committed Loan Notice true and complete copy of the bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in accordance with effect on the requirements hereof provided that such notice shall not include any representation or statement as Closing Date and at all times since a date prior to the absence date of the resolutions described in clause (or existenceii) of any Default;below,
(ii) executed counterparts that attached thereto is a true and complete copy of this Agreement resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Guaranty;Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(iii) that attached thereto is (A) a Note executed true and complete copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of such Credit Party, certified as of a recent date by the Borrower in favor Secretary of State (or other similar official) of the jurisdiction of its organization, (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Lender that such Credit Party in the jurisdiction in which it is formed or organized as of a recent date from such Secretary of State (or other similar official), which has requested not been amended and, (C) if available after the use of commercially reasonable efforts by the Borrower, a Note at least two certificate as to the good standing (2to the extent such concept or a similar concept exists under the laws of such jurisdiction) Business Days of each Credit Party in advance each jurisdiction where such Credit Party owns material Borrowing Base Properties (other than in the jurisdiction where such Credit Party is formed or organized), as of a recent date from the Effective Date;Secretary of State (or other similar official) of such jurisdiction, which has not been amended,
(iv) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(v) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date.
(i) The Administrative Agent (or its counsel) shall have received copies of the Collateral Agreement, the Mortgages, UCC financing statements and each other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vii) such certificates All Equity Interests of good standing from each wholly-owned Material Subsidiary directly owned by the applicable secretary of state Borrower or any Subsidiary Guarantor, in each case as of the state Closing Date, shall have been pledged pursuant to the Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC, tax and judgment lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of each Loan Partyorganization, certificates reflecting the absence of resolutions Liens and security interests other than those being released on or prior to the Closing Date or which are otherwise permitted under the Credit Documents.
(f) All representations and warranties made by any Credit Party contained herein or in the other actionCredit Documents are true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, incumbency certificates and/or other certificates in which case such representations and warranties shall have been true and correct in all material respects as of Responsible Officers of each Loan Party such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent may reasonably require evidencing shall have received a certificate of an Authorized Officer of the identity, authority and capacity Borrower certifying as to the satisfaction of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement such condition.
(g) The Administrative Agent and the Lead Arranger and Bookrunner shall have received (i) satisfactory audited consolidated financial statements of the Borrower for the fiscal year ended December 31, 2018 and satisfactory unaudited consolidated financial statements of the Borrower for each fiscal quarter thereafter ending at least 45 days prior to the Closing Date and (ii) a pro forma unaudited consolidated balance sheet of the Borrower and its subsidiaries as of the Closing Date, after giving effect to the initial Borrowing under this Agreement, the application of the proceeds thereof and to the other Loan transactions contemplated to occur on the Closing Date, certified by the Borrower’s chief financial officer, which shall reflect no Indebtedness other than the Loans made by the Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt) (collectively, the “Closing Date Financials”).
(h) The Administrative Agent and the Lead Arranger and Bookrunner shall have received (i) the Initial Reserve Report and (ii) lease operating statements and production reports with respect to which the Oil and Gas Properties evaluated in the Initial Reserve Report, in form and substance satisfactory to the Lead Arranger and Bookrunner, for the fiscal year ended December 31, 2018 and for each fiscal quarter ending thereafter ending at least 45 days prior to the Closing Date.
(i) The Borrower and/or other Credit Parties shall have entered into the Initial Required Hedge Agreements as of the Closing Date; provided that, subject to the Borrower and/or other Credit Parties using commercially reasonable efforts to enter into the Initial Required Hedge Agreements, if such Loan Party is a party or is to Initial Required Hedge Agreements have not been entered into as of the Closing Date, the entering into of such Initial Required Hedge Agreements shall not be a party on condition to the Effective Date;occurrence of the Closing Date and shall instead be required pursuant to Section 9.18.
(vij) an opinion from Proskauer RoseOn the Closing Date, LLP, New York and California counsel the Administrative Agent (or its counsel) shall have received (i) a solvency certificate (giving effect to the Loan Parties Chapter 11 Plan) substantially in the form of Exhibit Q-1;J hereto and signed by a Financial Officer of the Borrower and (ii) a Notice of Borrowing satisfying the requirements of Section 2.3(a).
(viik) an opinion from ▇▇The Administrative Agent shall have received evidence that the Borrower has (i) obtained and effected all insurance required to be maintained pursuant to the Credit Documents and (ii) caused the Administrative Agent to be named as lender loss payee and/or additional insured under each insurance policy with respect to such insurance, as applicable.
(l) All fees and expenses required to be paid hereunder and invoiced, including, without limitation, the reasonable and documented fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇, ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially Administrative Agent, shall have been paid in the form of Exhibit Q-2;
(viii) a solvency certificate full in cash or netted from the chief financial officer proceeds of the Borrower (as of initial funding under the Effective Date and after giving effect Facility, to the Transaction) substantially in the form attached hereto as Exhibit R;extent applicable.
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under The Administrative Agent (or its counsel) and the Loan Documents to be so named, and (ii) Lenders shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced received at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, the USA PATRIOT Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(jn) Since October 11The Credit Parties shall have used commercially reasonable efforts to deliver to the Administrative Agent (or its counsel) satisfactory title information (including customary title opinions, 2011, there shall information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located with respect to not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effectless than 50% of the PV-9 value of the Borrowing Base Properties evaluated in the Initial Reserve Report.
(ko) The Merger Agreement Representations Borrower shall have received, or shall receive simultaneously with the occurrence of the Closing Date, no less than $256,300,000 in aggregate cash proceeds from the Plan Sponsor Backstop Commitment Agreement, the Noteholder Backstop Commitment Agreement, the Rights Offering, and the Specified Representations shall be true and correct Incremental Equity Investment (if any) (as each term is defined in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualificationthe Chapter 11 Plan)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(lp) The Administrative Agent shall have received a certificate of a Responsible an Authorized Officer of the Borrower certifying (a) that the Borrower and its Restricted Subsidiaries have received all material third-party and governmental consents and approvals required by the terms of the Credit Documents, (b) since December 31, 2018, there has not been any material adverse change in, or Material Adverse Effect on the business, operations, property, liabilities (actual or contingent) or condition (financial or otherwise) of the Credit Parties, taken as a whole, other than any change, event or occurrence, arising individually or in form the aggregate, from events that could reasonably be expected to result from the filing or commencement of the Chapter 11 Cases or the announcement of the filing or commencement of the Chapter 11 Cases and substance (c) at the time of the initial Borrowing under this Agreement and also after giving effect thereto no Default or Event of Default shall have occurred and be continuing.
(q) The Administrative Agent shall be reasonably satisfied that after the initial Borrowing under this Agreement on the Closing Date, the application of the proceeds thereof and after giving effect to the other transactions contemplated hereby, the Available Commitment then available to be borrowed shall be not less than 15% of $475,000,000.
(r) The Administrative Agent shall have received evidence reasonably satisfactory to it that (a) all loans, commitments and other obligations under the Administrative AgentDIP Facility and the Pre-Petition Credit Agreement are being repaid in full, certifying the DIP Facility and the Pre-Petition Credit Agreement are being terminated, and the liens securing the DIP Facility and the Pre-Petition Credit Agreement are being released, in each case substantially contemporaneously with the proceeds of the initial Borrowing under this Agreement and (b) allowed Notes Claims and Term Loans Claims (each as defined in the Chapter 11 Plan) shall each have been satisfied through the issuance of New Common Stock (as defined in the Chapter 11 Plan) to the matters set forth holders of such claims in Section 4.1(c), (j) and (k). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance accordance with the conditions specified in this Section 4.1, each Lender shall be deemed Chapter 11 Plan. After giving effect to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no Indebtedness other than the Loans made by the Loan Lenders on the Closing Date and other Indebtedness permitted by the Credit Documents (excluding any Permitted Additional Debt). The Administrative Agent shall have received notice from such Lender prior evidence satisfactory to the Borrowing it that all liens on the Effective Date specifying assets of the Borrower and its objection thereto restricted subsidiaries (other than liens permitted by the Credit Documents) have been (or will be concurrently with the initial funding under the Facility) released or terminated and such Lender shall not have made available that duly executed recordable releases and terminations in forms reasonably acceptable to the Administrative Agent such Lender’s Ratable Portion of such Borrowingwith respect thereto have been obtained by the Borrower or its Restricted Subsidiaries.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedentprecedent on or prior to April 16, 2021, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Credit Parties and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇, as special Louisiana counsel to the Credit Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsiii) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative AgentAgent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i) and (ii), and, in the case of the Borrower, the item referred to in subclause (iii) below:
(i) a Committed Loan Notice copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of each Credit Party, in accordance with each case, certified as of a recent date by the requirements hereof provided that such notice shall not include any representation Secretary of State (or statement other similar official) of the jurisdiction of its organization, and a certificate as to the absence good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or existence) of any Defaultother similar official);
(ii) executed counterparts a certificate of this Agreement the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the Guaranty;bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(iii) a Note certificate of a Financial Officer of the Borrower to the effect that (x) no Default or Event of Default exists and (y) since December 31, 2019, no event has occurred and is continuing, individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect and which certificate shall set forth the calculations demonstrating that, as of the Closing Date (i) the Borrower and its Restricted Subsidiaries were in compliance with a Consolidated Total Net Leverage Ratio of no more than 2.25:1.00 and (ii) after giving effect to the Closing Date Loans, the Liquidity of the Borrower and its Restricted Subsidiaries is no less than $250,000,000.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of a joinder to the Intercreditor Agreement, executed by the Borrower in favor Administrative Agent as collateral agent for the Secured Parties.
(i) The Administrative Agent (or its counsel) shall have received copies of each Lender that has requested a Note the Collateral Agreement, Mortgages on at least two (2) Business Days in advance 90% of the Effective Date;
(iv) PV-9 of the Credit Parties’ total Proved Reserves included in the Initial Reserve Report and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vii) such certificates All Equity Interests of good standing from each wholly-owned Material Subsidiary directly owned by the applicable secretary of state Borrower or any Subsidiary Guarantor, in each case as of the state Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of each Loan Partyorganization.
(f) The Acquisition shall have been consummated, certificates or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of resolutions the Contribution Agreement. The Contribution Agreement shall not have been amended or waived in any material respect by PubCo and PubCo shall not have granted any material consent under the Contribution Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed). Upon the consummation of the Acquisition, the Borrower and Restricted Subsidiaries shall own at least 98% of the PV-9 value set forth in the Initial Reserve Report.
(g) All representations and warranties made by any Credit Party contained herein or in the other actionCredit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, incumbency certificates and/or other certificates in which case such representations and warranties shall have been true and correct in all material respects as of Responsible Officers of each Loan Party such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent may reasonably require evidencing shall have received a certificate of an authorized officer of the identity, authority and capacity borrower certifying as to the satisfaction of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;condition.
(vih) an opinion from Proskauer RoseThe Closing Date IPO shall have been successfully consummated, LLPor shall be consummated substantially concurrently with the initial Borrowing under this Agreement, New York and California counsel gross proceeds of no less than $300,000,000 shall have been contributed, or shall be contributed substantially concurrently with the initial Borrowing under this Agreement, to the Loan Parties Borrower.
(i) The Second Lien Credit Agreement shall have been amended to establish a “First Lien Facility Cap” (as defined therein) of $350,000,000, in form and substance reasonably satisfactory to the Administrative Agent.
(j) [reserved].
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit Q-1;J hereto and signed by a Financial Officer of the Borrower.
(viil) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (as of the Effective Date i) obtain and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) cause the Effective Date and that the Collateral Administrative Agent has been to be named as loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance as to which the Collateral Administrative Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(bm) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against or netted from the proceeds of the initial funding under the Facility).
(cn) Prior to The Administrative Agent (or substantially simultaneously with the initial Borrowing on the Effective Date, (iits counsel) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
three (e3) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect Business Days prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing (including a Beneficial Ownership Certification) required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Beneficial Ownership Regulation and the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date.
(jo) Since October 11The Administrative Agent (or its counsel) shall have received (i) the Initial Reserve Report and (ii) satisfactory title information (including customary title opinions, 2011information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located, there shall taking into account the size, scope and number of leases and ▇▇▇▇▇ of the Borrower and its Restricted Subsidiaries, with respect to not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a less than 85% of the PV-9 value of the Borrowing Base Properties on the Closing Date Material Adverse Effect(provided that the Administrative Agent may waive the requirements of the preceding clause (ii) in its reasonable discretion so long as the Administrative Agent (or its counsel) shall have received satisfactory title information (including customary title opinions, information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located, taking into account the size, scope and number of leases and ▇▇▇▇▇ of the Borrower and its Restricted Subsidiaries, with respect to not less than 50% of the PV-9 value of the Borrowing Base Properties on the Closing Date).
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(lp) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance evidence reasonably satisfactory to it that (i) the Administrative Agent, certifying to Existing Vine RBL Credit Agreement (ii) the matters set forth in Section 4.1(c), (j) Third Lien Credit Agreement and (k)iii) the Existing Brix Credit Agreement have been terminated, or shall be terminated substantially concurrently with the initial Borrowing under this Agreement, that all related outstanding obligations (however defined) have been discharged or released. or shall be discharged or released substantially concurrently with the initial Borrowing under this Agreement, and Liens securing such agreements and obligations shall have been terminated and/or released, or shall be terminated and/or released substantially concurrently with the initial Borrowing under this Agreement,. Without limiting the generality of the provisions of the last paragraph of Section 9.312.4, for purposes of determining compliance with the conditions specified specific in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approved, approved or accepted or to be satisfied with, each document or other matter matters required thereunder under this Section 6 to be consented to or approved by or acceptable or satisfactory to the Lenders a 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 Borrowing on the Effective Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
Appears in 1 contract
Sources: Credit Agreement (Vine Energy Inc.)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Loans shall be initial Borrowing under this Agreement is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedentprecedent on or prior to April 16, 2021, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with pursuant to Section 12.1 shall be the “Effective Date”):13.1.
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent and the Lenders, written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Credit Parties and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇, as special Louisiana counsel to the Credit Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent’s receipt of , the followingCollateral Agent, the Lenders and each of which shall be originals or facsimiles Issuing Bank and (followed promptly by originalsiii) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to customary for transactions of this type. The Borrower, the other Credit Parties and the Administrative AgentAgent hereby instruct such counsel to deliver such legal opinions.
(c) The Administrative Agent shall have received, in the case of each Credit Party, each of the items referred to in subclauses (i) and (ii), and, in the case of the Borrower, the item referred to in subclause (iii) below:
(i) a Committed Loan Notice copy of the certificate or articles of incorporation or certificate of formation, including all amendments thereto, of each Credit Party, in accordance with each case, certified as of a recent date by the requirements hereof provided that such notice shall not include any representation Secretary of State (or statement other similar official) of the jurisdiction of its organization, and a certificate as to the absence good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or existence) of any Defaultother similar official);
(ii) executed counterparts a certificate of this Agreement the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the Guaranty;bylaws (or limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or managing member or equivalent) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (ii) above.
(iii) a Note certificate of a Financial Officer of the Borrower to the effect that (x) no Default or Event of Default exists and (y) since December 31, 2019, no event has occurred and is continuing, individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect and which certificate shall set forth the calculations demonstrating that, as of the Closing Date (i) the Borrower and its Restricted Subsidiaries were in compliance with a Consolidated Total Net Leverage Ratio of no more than 2.25:1.00 and (ii) after giving effect to the Closing Date Loans, the Liquidity of the Borrower and its Restricted Subsidiaries is no less than $250,000,000.
(d) The Administrative Agent (or its counsel) shall have received executed copies of the Guarantee, executed by each Person which will be a Guarantor on the Closing Date, and of a joinder to the Intercreditor Agreement, executed by the Borrower in favor Administrative Agent as collateral agent for the Secured Parties.
(i) The Administrative Agent (or its counsel) shall have received copies of each Lender that has requested a Note the Collateral Agreement, Mortgages on at least two (2) Business Days in advance 90% of the Effective Date;
(iv) PV-9 of the Credit Parties’ total Proved Reserves included in the Initial Reserve Report and each Collateral other Security Document set forth on Schedule 1.1A that is required to be executed on the Effective Date as indicated on such scheduleClosing Date, duly executed by each Loan Credit Party party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) with evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date subject to the last paragraph of this Section 6 or that the Administrative Agent and the Collateral Agent has may deem reasonably requested necessary to (A) create the Liens intended to be takencreated by any Security Document and perfect such Liens to the extent required by, completed or otherwise provided for and with the priority required by, such Security Document shall have been delivered to satisfy the Collateral Agent for filing, registration or recording and Guarantee Requirement (B) comply with Section 9.11, in each case shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(vii) such certificates All Equity Interests of good standing from each wholly-owned Material Subsidiary directly owned by the applicable secretary of state Borrower or any Subsidiary Guarantor, in each case as of the state Closing Date, shall have been pledged pursuant to Collateral Agreement (except that such Credit Parties shall not be required to pledge any Excluded Equity Interests) and the Collateral Agent shall have received all certificates, if any, representing such securities pledged under the Collateral Agreement, accompanied by instruments of organization transfer and/or undated powers endorsed in blank.
(iii) The Administrative Agent shall have received customary UCC lien searches with respect to the Borrower and the Guarantors in their applicable jurisdictions of each Loan Partyorganization.
(f) The Acquisition shall have been consummated, certificates or shall be consummated substantially concurrently with the initial Borrowing under this Agreement, in accordance with the terms of resolutions the Contribution Agreement. The Contribution Agreement shall not have been amended or waived in any material respect by PubCo and PubCo shall not have granted any material consent under the Contribution Agreement in a manner materially adverse to the Lenders (in their capacity as such) without the consent of the Lead Arrangers (not to be unreasonably withheld or delayed). Upon the consummation of the Acquisition, the Borrower and Restricted Subsidiaries shall own at least 98% of the PV-9 value set forth in the Initial Reserve Report.
(g) All representations and warranties made by any Credit Party contained herein or in the other actionCredit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, incumbency certificates and/or other certificates in which case such representations and warranties shall have been true and correct in all material respects as of Responsible Officers of each Loan Party such earlier date and except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates) and the Administrative Agent may reasonably require evidencing shall have received a certificate of an authorized officer of the identity, authority and capacity borrower certifying as to the satisfaction of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;condition.
(vih) an opinion from Proskauer RoseThe Closing Date IPO shall have been successfully consummated, LLPor shall be consummated substantially concurrently with the initial Borrowing under this Agreement, New York and California counsel gross proceeds of no less than $300,000,000 shall have been contributed, or shall be contributed substantially concurrently with the initial Borrowing under this Agreement, to the Loan Parties Borrower.
(i) [reserved].
(j) [reserved].
(k) On the Closing Date, the Administrative Agent (or its counsel) shall have received a solvency certificate substantially in the form of Exhibit Q-1;J hereto and signed by a Financial Officer of the Borrower.
(viil) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit Q-2;
(viii) a solvency certificate from the chief financial officer of The Administrative Agent shall have received evidence that the Borrower shall have made commercially reasonable efforts to (as of the Effective Date i) obtain and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Credit Documents has been obtained and is in effect as of (ii) cause the Effective Date and that the Collateral Administrative Agent has been to be named as loss payee and/or additional insured, as applicable, insured under each insurance policy with respect to such insurance as to which the Collateral Administrative Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; and
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(bm) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Closing Date (or such shorter period as may be reasonably agreed by the Borrower) shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against or netted from the proceeds of the initial funding under the Facility).
(cn) Prior to The Administrative Agent (or substantially simultaneously with the initial Borrowing on the Effective Date, (iits counsel) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
three (e3) The Intercreditor Agreement and the ABL Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect Business Days prior to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans, (B) borrowings and letter of credit obligations under the ABL Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received Closing Date all documentation and other information reasonably requested in writing (including a Beneficial Ownership Certification) required by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Beneficial Ownership Regulation and the Patriot Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date.
(jo) Since October 11The Administrative Agent (or its counsel) shall have received (i) the Initial Reserve Report and (ii) satisfactory title information (including customary title opinions, 2011information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located, there shall taking into account the size, scope and number of leases and ▇▇▇▇▇ of the Borrower and its Restricted Subsidiaries, with respect to not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a less than 85% of the PV-9 value of the Borrowing Base Properties on the Closing Date Material Adverse Effect(provided that the Administrative Agent may waive the requirements of the preceding clause (ii) in its reasonable discretion so long as the Administrative Agent (or its counsel) shall have received satisfactory title information (including customary title opinions, information or reports or other documents) consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located, taking into account the size, scope and number of leases and ▇▇▇▇▇ of the Borrower and its Restricted Subsidiaries, with respect to not less than 50% of the PV-9 value of the Borrowing Base Properties on the Closing Date).
(k) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(lp) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance evidence reasonably satisfactory to it that (i) the Administrative Agent, certifying to Existing Vine RBL Credit Agreement (ii) the matters set forth in Section 4.1(c), (j) Third Lien Credit Agreement and (k)iii) the Existing Brix Credit Agreement have been terminated, or shall be terminated substantially concurrently with the initial Borrowing under this Agreement, that all related outstanding obligations (however defined) have been discharged or released. or shall be discharged or released substantially concurrently with the initial Borrowing under this Agreement, and Liens securing such agreements and obligations shall have been terminated and/or released, or shall be terminated and/or released substantially concurrently with the initial Borrowing under this Agreement,. Without limiting the generality of the provisions of the last paragraph of Section 9.312.4, for purposes of determining compliance with the conditions specified specific in this Section 4.16, each Lender that has signed this Agreement shall be deemed to have consented to, approved, approved or accepted or to be satisfied with, each document or other matter matters required thereunder under this Section 6 to be consented to or approved by or acceptable or satisfactory to the Lenders a 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 Borrowing on the Effective Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowingthereto.
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Sources: Credit Agreement (Vine Energy Inc.)