Effectiveness of this Amendment. This Amendment shall be effective only if and when: (a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent; (b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect; (c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment; (d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent; (e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent; (f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent; (g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company; (h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board; (i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent; (j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request; (k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000; (l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and (m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017).
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Effectiveness of this Amendment. This Amendment shall be become effective only if and on the date (the "Effective Date") when:
(ai) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders Company and the Administrative Agent on behalf of Required Investors shall have signed a counterpart hereof (whether the Required Lenders same or different counterparts),
(and ii) the Administrative Agent Investors shall have received written direction a copy of a duly executed amendment of the Senior Credit Agreement, in form and substance satisfactory to the Required Investors,
(iii) the Investors shall have received a copy of a duly executed amendment of the Sale and Leaseback Documents, in form and substance satisfactory to the Required Investors,
(iv) the transactions contemplated by the Required Lenders to execute this Amendment on their behalf), ETI Credit Documents and each such party the ETI Stock Purchase Documents shall have delivered their fully executed signature pages hereto been consummated, in form, substance and upon timing satisfactory to the Administrative Agent;Required Investors,
(bv) the Borrower Company shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be Investors true and correct in all respects and, in furtherance thereof, copies of the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities ETI Credit Documents and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate ETI Stock Purchase Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;Required Investors,
(evi) the Administrative Agent Company shall have received (i) an Effective Date certificate dated as delivered to the Investors true and correct copies of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case2003 Warrant Agreement, in form and substance reasonably satisfactory to the Administrative Agent;Required Investors,
(fvii) the Administrative Agent Company shall have received a consent and acknowledgement relating delivered to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged PropertyInvestor a duly executed 2003 Warrant (issued to such Investor), in form and substance reasonably satisfactory to the Administrative Agent;Required Investors,
(gviii) the Administrative Agent and the Collateral Agent Company shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal delivered to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, Investors true and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form correct copies of an ALTA Loan Policy acceptable acknowledgement to the Administrative Agent; Registration Rights Agreement, in form and substance satisfactory to the Required Investors,
(vix) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each Company shall have delivered to the Investors a copy of a letter from [________] in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received Required Investors confirming (i) evidence [______]'s willingness to enter into a Supply Agreement with the Company and ETI as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating provided in the National Flood Insurance Program, ETI Credit Agreement and (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party Company currently has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;nominally equivalent [_____] payment terms,
(ix) the Administrative Agent and the Collateral Agent Investors shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice written opinion of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York P.A., counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative AgentCompany, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative AgentRequired Investors, and
(xi) the Company shall have paid all fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the preparation, execution or delivery of this Amendment and all other unpaid fees and expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in [_____] confidential treatment requested. This connection with the Purchase Agreement to the extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment shall be deemed to be effective on limit the date (the “Effective Date”) on which each generality of Section 12.4 of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)Purchase Agreement.
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Effectiveness of this Amendment. This Amendment shall be effective only if and whenupon the date of satisfaction of the following conditions precedent:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction this Amendment executed by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative AgentCredit Parties;
(b) the Borrower Agent shall have delivered received updates to the Administrative Agent an amendment disclosure schedules to the Revolving Credit AgreementAgreement with respect to Joining Guarantors, attached hereto as Exhibit A, in form and substance acceptable to Agent;
(c) Agent shall have received a pledge agreement, in form and substance acceptable to Agent, executed by Holdings in favor of Agent for the Equity Interests of each Joining Guarantor;
(d) Agent shall have received a perfection certificate for Joining Guarantors, in form and substance acceptable to Agent, executed by the Credit Parties;
(e) Agent shall have received a Certificate of Beneficial Ownership, in form and substance acceptable to Agent, executed and delivered to Agent and Lenders for each Borrower, and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Equity Pledgor, USA Patriot Act;
(f) Agent shall have received the other Loan Parties party thereto executed legal opinion of counsel in form and the Revolving Administrative Agent, substance satisfactory to Agent which amendment shall (i) permit cover such matters incident to the transactions contemplated by this Amendment, the Other Documents and related agreements as Agent may reasonably require and the Credit Parties hereby authorizes and directs such counsel to deliver such opinions to Agent and Lenders;
(g) Agent shall have received in form and substance satisfactory to Agent, certificates evidencing the addition of Joining Guarantors as insured parties to the other Credit Parties’ casualty and liability insurance policies;
(h) Agent shall have received UCC searches, Federal and State tax lien searches, and other Lien searches run against the names of the Joining Guarantors and any previous, alternate and fictitious names of the Joining Guarantors, as applicable, showing no existing security interests in or Liens on the Collateral other than Permitted Encumbrances and other Liens permitted by the Agent;
(i) Agent shall have received a certificate of the corporate secretary or other authorized officer of each Credit Party, in form and substance acceptable to Agent, dated as of the Third Amendment Effective Date, which shall certify (i) copies of resolutions in form and substance satisfactory to Agent, of the board of directors (or other equivalent governing body, member or partner) of Holdings and each Joining Guarantor authorizing, as applicable, the execution, delivery and performance of this Amendment and each Other Document delivered in connection herewith to which such Credit Party is a party (including authorization of the joinder of Joining Guarantors to the Credit Agreement and each Other Document as a Guarantor on a joint and several basis with all other Guarantors as provided for in the Credit Agreement, the Closing Date Guaranty and the Other Documents and of Joining Guarantors’ grant of the security interests in and liens upon its Collateral to secure the Obligations (and such certificate shall state that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate), (ii) have been executed the incumbency and signature of the authorized officers of each Credit Party authorized to execute this Amendment and the Other Documents delivered in connection herewith to which it is a party, (iii) (a) with respect to Joining Guarantors, copies of each Joining Guarantor’s certificate of incorporation certified by the parties Secretary of State of the State of New York and bylaws in effect on the date hereof, complete with all amendments thereto and shall be (b) with respect to Borrowers and HT, either (1) a certification that the certificates or articles of incorporation or charter, as applicable, and the bylaws previously delivered to Agent have not been amended, modified or rescinded in any way since such delivery and remain in full force and effecteffect as of the date hereof or (2) to the extent of any amendments or modifications since last delivered to Agent, certificates or articles of incorporation or charter, as applicable, certified by the Secretary of State or other appropriate official of the applicable Credit Party’s jurisdiction of formation and bylaws, as in effect on the date hereof, complete with all amendments thereto, and (iv) with respect to Joining Guarantors, the good standing (or equivalent status) of each Joining Guarantor in its jurisdiction of organization and each applicable jurisdiction where the conduct of each Joining Guarantor’s business activities or the ownership of its properties necessitates qualification, as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated as of a recent date, issued by the Secretary of State or other appropriate official of each such jurisdiction;
(cj) Agent shall have received and reviewed to its satisfaction the execution version of the Joinder to Term Loan Credit and Security Agreement and Other Documents, dated as of the date hereof, executed by Term Loan Agent and the Credit Parties (the “Term Loan Joinder”) and all material documents, instruments and agreements to the executed and delivered in connection therewith, and all conditions precedent to the effectiveness of the Term Loan Joinder shall have been satisfied;
(k) Each document (including any Uniform Commercial Code financing statements) required by this Amendment, any related agreement or under law or reasonably requested by the Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;
(l) Agent shall have received such other agreements, instruments and information requested by Lender, in form and substance acceptable to Agent;
(m) All of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitmentrespects; and
(mn) the Administrative AgentAfter giving effect to this Amendment, on behalf no Default or Event of itself and the Lenders, Default shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor occurred and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)continuing.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Hudson Technologies Inc /Ny)
Effectiveness of this Amendment. This The “Amendment Effective Date” shall be effective only if and whenthe date on which the following conditions shall have been satisfied:
(a) this Amendment is signed by The Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) the Equity Pledgor, Consenting Lenders who comprise at least the Completion Guarantor, the other Loan Parties party hereto, Required Lenders and (iii) the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First either (x) counterparts of this Amendment Additional Term B Lenders and signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent on behalf (which may include facsimile or other electronic transmissions of the Required Lenders (and the Administrative Agent shall signed signature pages) that such parties have received written direction by the Required Lenders to execute signed counterparts of this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;Amendment.
(b) Immediately before and immediately after the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit AgreementAmendment Effective Date, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, no Event of Default shall have occurred and be continuing and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained (x) of the Borrower set forth in the Financing Documents and (y) in Section 5 3 of this Amendment shall be true and correct in all material respects andas of such date (it being understood that, to the extent that any such representation and warranty specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date and any such representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(c) The Administrative Agent shall have received a certificate of an appropriate officer of the Borrower certifying that the conditions set forth in Section 4(b) of this Amendment have been satisfied.
(d) The Administrative Agent shall have received on or prior to the Amendment Effective Date, in furtherance thereofimmediately available funds, payment or reimbursement (or the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance made arrangements reasonably satisfactory to the Administrative Agent for the execution such payment or reimbursement) of all costs and delivery of this Amendment out-of-pocket expenses then due and the performance of the obligations of the Borrower and the other Loan Parties under or payable in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together connection with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”)including all reasonable invoiced fees and expenses of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory counsel to the Administrative Agent;, to the extent invoiced at least two (2) Business Days prior to the Amendment Effective Date.
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the The Administrative Agent shall have received a consent duly executed certificate of an appropriate officer of the Borrower, certifying (i) that the copies of the Borrower’s Organizational Documents (x) as previously certified and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory delivered to the Administrative Agent;
(g) the Administrative Agent , remain in full force and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount effect as of the First Amendment Additional Term B Loan Commitments; Effective Date without modification or amendment since such original delivery or (iiy) insure that as certified as of a recent date by the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit appropriate Governmental Authority of the Secured Partiesjurisdiction of the Borrower’s formation and attached to such officer’s certificate, are true, correct and complete and in full force and effect as of the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Amendment Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance ProgramDate, (ii) if there are any such Mortgaged Properties, that the copies of the Borrower’s written acknowledgement resolutions approving and adopting the Financing Documents to which it is party, the transactions contemplated herein, and authorizing the execution and delivery thereof, as attached to such officer’s certificate, are true, correct and complete copies and in full force and effect as of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, Amendment Effective Date and (iii) if any such Mortgaged Properties are located in communities that participate in as to incumbency certificates identifying the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations officers of the Board;Borrower that are authorized to execute this Amendment and to act on the Borrower’s behalf in connection with this Amendment.
(if) the The Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles good standing for the Borrower from the Borrower’s jurisdiction of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Partyformation, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of appropriate Governmental Authority. The Administrative Agent shall notify the Borrower, the borrowings hereunder, in Consenting Lenders and the case of each other Loan Party, the affirmation and ratification Lenders of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment notice shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)conclusive and binding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be become effective only if and whenas of the date hereof (the “Effective Date”) upon receipt by the Administrator of each of the following:
(a) duly executed counterparts of this Amendment is signed (whether by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf facsimile or otherwise) executed by each of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agentparties hereto;
(b) duly executed counterparts of the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, A&R Fee Letter (whether by facsimile or otherwise) executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by each of the parties thereto and shall be in full force and effectthereto;
(c) each certified copies of: (i) the resolutions or unanimous written consents of the representations board of directors (or the equivalent thereof) of the Seller authorizing the execution, delivery and warranties contained in Section 5 performance by the Seller of this Amendment shall be true and correct in all respects and, in furtherance thereofAmendment, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower A&R Fee Letter and the other Loan Parties under Transaction Documents to which it is a party; (ii) all documents evidencing other necessary corporate or in organizational action and governmental approvals, if any, with respect of to this Amendment, the A&R Fee Letter and the other Transaction Documents and (iii) the certificate of formation and limited liability company agreement of the Seller;
(d) a certificate of the Administrative Agent shall have received (i) a MortgageSecretary or Assistant Secretary of the Seller, executed by the Borrower Servicer and the Golf Sub, (ii) a Mortgage, executed by Performance Guarantor certifying the EV Sub, (iii) an Assignment names and true signatures of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required its officers who are authorized to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under sign this Amendment, the “First Amendment Documents”)A&R Fee Letter and the other Transaction Documents to which it is a party;
(e) a favorable opinion, addressed to each Rating Agency, the Administrator, each dated as of the Effective Date, in Purchaser Agent and each case executed and delivered by a duly authorized officer of each party theretoPurchaser, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent dateAdministrator, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPDay, as special New York counsel for the Loan PartiesSeller, the Completion Guarantor Servicer and the Equity PledgorPerformance Guarantor, and (ii) Fox Rothschild LLP, as special New York internal counsel for the Loan PartiesSeller, the Equity Pledgor Servicer and the Completion Performance Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover covering such matters relating to the First Amendment Documents as the Administrative Agent shall Administrator may reasonably request request, including, without limitation, certain organizational, no-conflict and which are customary for transactions New York enforceability matters; and
(f) evidence of payment by the Seller of the type contemplated herein “Amendment Fee” (under and (Das defined in the A&R Fee Letter) be otherwise in form and substance reasonably satisfactory to accordance with the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each terms of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)A&R Fee Letter.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be become effective only if and whenas of the first date (such date being referred to as the “Restatement Effective Date”) on which each of the following conditions shall have been satisfied:
(a) this Amendment is signed by the Administrative Agent (or its counsel) shall have received from (i) the Borrower, (ii) each Issuing Bank, (iii) the Equity PledgorSwingline Lender, (iv) each Extending Term Lender, and (v) such Lenders as shall represent the Completion GuarantorRequired Lenders, the other Loan Parties either (A) a counterpart of this Amendment signed on behalf of such party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and or (B) written evidence satisfactory to the Administrative Agent on behalf (which may include facsimile or other electronic transmission of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute a signed signature page of this Amendment on their behalf), and each Amendment) that such party shall have delivered their fully executed signature pages hereto to the Administrative Agenthas signed a counterpart of this Amendment;
(b) the Borrower each Subsidiary Loan Party shall have delivered to the Administrative Agent an amendment to the Revolving Credit entered into a Reaffirmation Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent;
(c) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the execution Borrower, in form and delivery of this Amendment and substance reasonably satisfactory to the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this AmendmentAdministrative Agent;
(d) the Administrative Agent shall have received (i) a Mortgagesuch documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, executed by the Borrower existence and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment good standing of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectivelyeach Loan Party, the “First Amendment Real Estate Documents” and, together with this Amendment authorization of the transactions contemplated hereby and any other legal matters relating to each other document required to be executed by the BorrowerLoan Party, the Completion GuarantorLoan Documents or the transactions contemplated hereby, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the representations and warranties of the Borrower set forth in Section 5 hereof shall be true and correct as of the Restatement Effective Date, and the Administrative Agent shall have received (i) an Effective Date certificate a certificate, dated as of the Restatement Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;, confirming the accuracy thereof; and
(f) the Administrative Agent shall have received a consent the Amendment Fee (as defined below) and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form all amounts due and substance reasonably satisfactory payable to the Administrative Agent;
Agent on or prior to the Restatement Effective Date pursuant to the Loan Documents, including, to the extent invoiced, reimbursement of all out-of-pocket expenses (gincluding reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document, and the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger Affiliates shall have received all Fees amounts due and payable on or prior to the Restatement Effective Date pursuant to that certain letter agreement entered into in connection with this Amendment and the transactions contemplated hereby, including, to the extent invoiced, reimbursement of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent pursuant to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)letter agreement.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Effectiveness of this Amendment. This Amendment shall be effective only if and when:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders The Lender and the Administrative Agent on behalf of Borrowers agree that the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 terms of this Amendment shall not be true effective (and correct the Lender shall have no obligations under this Amendment) unless and until all of the following conditions have either been fulfilled in all respects and, a manner satisfactory to the Lender or waived in furtherance thereof, writing by the Borrower Lender:
(A) The Lender shall have received all necessary approvals and/or consents from items on the Governmental Authorities List of Closing Documents attached hereto and made a part hereof as EXHIBIT P-1 (including Gaming Authorities deliveries required for the Grogan's Transaction and the this Amendment), such items to be i▇ ▇▇▇▇ ▇nd substance satisfactory to the Lender, and to be executed by all parties thereto when the nature of such items so requires.
(B) The Borrowers shall have paid to the Lender all costs and expenses incurred as of the date hereof in connection with this Agreement and the other documents and instruments executed in connection herewith or contemplated by the terms hereof (collectively, the "Amendment Documents") or otherwise in connection with the Loan which the Borrowers are obligated to pay pursuant to the terms of Section 12.7 of the Loan Agreement.
(C) All proceedings taken in connection with the execution of this Amendment, all other Amendment Documents, and all documents and papers relating thereto shall be satisfactory to the Lender. The Lender shall have received copies of such documents and papers as the Lender may reasonably request in connection therewith, all in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;Lender.
(dD) the Administrative Agent The Lender shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date date hereof and signed by the chairman, vice chairman or chief executive officer and the chief financial officer or treasurer of each Borrower certifying that the conditions specified in this Section 5 have been fulfilled.
(E) The Borrowers shall have provided to the Lender updated and corrected Schedules in form and substance satisfactory to the Lender which shall be substituted for the Schedules attached to the Original Loan Agreement.
(F) The Borrowers shall have paid to the Lender a Financial Officer or other authorized officer closing fee in the amount of $35,000 in connection with the Lender's agreement (i) to increase the amount of the BorrowerRevolving Credit Commitment, (ii) to fund the Grogan's Term Loan and (iii) to fund the Arizona Term Loan.
(G) The Borrowers shall have duly executed and delivered to the Lender a promissory note, substantially in the form of EXHIBIT R attached hereto and made a part hereof (as the same has been or may be amended, modified, extended, and renewed from time to time, the "Substitute Revolving Credit Note"), to evidence the increase m the Revolving Credit Commitment and to replace the exiting Revolving Credit Note. Upon the Borrowers complying with the foregoing, (i) the Lender will return to the Borrowers the existing Revolving Credit Note, marked "cancelled" and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth references in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as Agreement to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment Revolving Credit Note shall be deemed to be effective on refer to the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)Substitute Revolving Credit Note.
Appears in 1 contract
Sources: Loan and Security Agreement (Atlantic Beverage Co Inc)
Effectiveness of this Amendment. This The effectiveness of this Amendment shall be effective only if and whenis subject to the following conditions precedent:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent Lender shall have received written direction by the Required Lenders to execute this Amendment on their behalf)Amendment, and each such party shall have delivered their fully executed signature pages hereto in a sufficient number of counterparts for distribution to the Administrative Agent;all parties.
(b) the Borrower Lender shall have delivered received such documents as Lender may require to establish that it has a valid, perfected and first priority security interest in the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;Collateral.
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower Lender shall have received all necessary approvals and/or consents a secretary certificate from the Governmental Authorities (including Gaming Authorities Image/Madacy and the ▇▇▇) in form and substance reasonably satisfactory such other documents as Lender may require with respect to the Administrative Agent for the execution organization, existence, good standing, power and delivery authority of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;Image/Madacy.
(d) Lender shall have received evidence of insurance and loss payable endorsements with respect to the Administrative Agent insurance policies of Image/Madacy.
(e) Lender shall have received a favorable opinion letter of counsel to Image/Madacy with respect to the transactions contemplated hereby.
(f) Lender shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, Bailee Agreement; (ii) a Mortgage, executed by the EV Sub, an Intercreditor Agreement; and (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Datea Non-Offset Letter, in each case case, duly executed and delivered by Sony DADC US Inc. d/b/a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the BorrowerSony DADC Americas, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;Lender.
(fg) the Administrative Agent Lender shall have received Deposit Account Control Agreements by and among Agent, Image/Madacy and each bank where Image/Madacy has a consent deposit account, in each case, duly authorized, executed and acknowledgement relating to each Mortgage from delivered by such bank and Image/Madacy.
(h) The representations and warranties set forth herein and in the landlord of each material leased Real Property that constitutes Mortgaged Property, Loan Agreement shall be true and correct.
(i) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017).
Appears in 1 contract
Sources: Loan and Security Agreement (Image Entertainment Inc)
Effectiveness of this Amendment. This Amendment shall be become effective only if on the date the following conditions are satisfied, each in form and when:substance acceptable to Agent (such date, the “Effective Date”):
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction this Amendment duly executed and delivered by the Required Borrowers, the Lenders to execute this Amendment on their behalf), party hereto and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower Agent shall have delivered to received a Borrowing Base Certificate (and all supporting reports as Agent may require) prepared as of the Administrative Agent an amendment to the Revolving Credit AgreementNovember 30, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect2024;
(c) each Agent shall have received a payoff letter regarding all existing Debt of Credit Parties owing to Whitehawk Capital Partners, LP (“Whitehawk”) and the lenders under in connection with that certain Credit Agreement, dated as of the Closing Date, by and among Borrowers, the other Credit Parties party thereto, the Lenders and Whitehawk, as Agent;
(i) All conditions precedent to the effectiveness of the Term Loan Credit Agreement and the other Term Loan Debt Documents (as applicable), on terms reasonably acceptable to Agent, shall have been satisfied or waived by the Term Loan Lenders in accordance with the Term Loan Credit Agreement, (ii) Term Loan Agent, on behalf of the Term Loan Lenders, shall have executed and delivered the Intercreditor Agreement, which shall be in form and substance reasonably satisfactory to Agent, (iii) Agent shall have received fully-executed copies of the Term Loan Debt Documents, the terms and conditions of which shall be reasonably acceptable to Agent, and (iv) Borrowers shall have received (or will receive concurrently with the funding of the Loans on the Closing Date) at least $40,000,000 of gross proceeds of the Term Loan Debt funded by the Term Loan Lenders in accordance with the Term Loan Debt Documents;
(e) no Default or Event of Default shall exist at the time of, or immediately result from, the consummation of this Amendment; and
(f) the representations and warranties contained of each Credit Party in Section 5 of this Amendment the Credit Agreement and the other Loan Documents shall be true and correct in all material respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date of, and after giving effect to, this Amendment (the provided that any representation or warranty that is qualified as to “Effective Date”materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to such qualification) in all respects on such effective date), except for those representations and warranties that expressly relate to an earlier date, in which each case, they shall have been true and correct in all material respects as of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)date.
Appears in 1 contract
Sources: Credit Agreement (BRC Inc.)
Effectiveness of this Amendment. This The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent (the first date on which such conditions precedent shall be effective only if and when:have been satisfied is referred to as the “Amendment Effective Date”):
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, The Initial First-Out Lender shall have executed a counterpart hereof and shall (or its counsel shall) have received from the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Borrower and each other Loan Party a counterpart of this Amendment Additional Term B Lenders and the Administrative Agent signed on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have (which counterparts may be delivered their fully executed signature pages hereto to the Administrative Agent;by facsimile or electronic transmission in .pdf or .tif format).
(b) the Borrower The Primoris Merger Agreement shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) not have been executed and delivered by the parties thereto terminated and shall be in full force and effect;effect in accordance with the terms thereof.
(c) each The Forbearance Agreement, and the forbearances provided for therein, shall not have been terminated, shall be in full force and effect in accordance with the terms thereof, and shall not have been amended, amended and restated, supplemented or otherwise modified since March 27, 2018.
(d) The Limited Forbearance Agreement, dated as of March 27, 2018 (the “ABL Forbearance Agreement”), among Willbros United States Holdings, Inc., the Borrowers (solely for this purpose, as defined therein), the Borrower, the other persons party thereto as Guarantors (solely for this purpose, as defined therein), the lenders party thereto and Bank of America, N.A., and the forbearances provided for therein, shall not have been terminated, shall be in full force and effect in accordance with the terms thereof, and shall not have been amended, amended and restated, supplemented or otherwise modified since March 27, 2018.
(e) The Put/Call Agreement shall not have been terminated, shall be in full force and effect in accordance with the terms thereof, and shall not have been amended, amended and restated, supplemented or otherwise modified since March 27, 2018.
(f) The Initial First-Out Lender (or its counsel) shall have received a certificate dated the Amendment Effective Date from a Responsible Officer of the Borrower certifying that on and as of the Amendment Effective Date, (i) the representations and warranties of the Loan Parties contained in Section 5 of this Amendment below are true and correct in all material respects (provided that to the extent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall be certified to be true and correct in all respects andrespects), except to the extent any such representation and warranty relates to an earlier date, in furtherance thereof, the Borrower which case such representation and warranty shall have received be certified to be true and correct in all necessary approvals and/or consents from the Governmental Authorities material respects (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory provided that to the Administrative Agent for the execution extent any such representation and delivery of this Amendment warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent warranty shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required be certified to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor true and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated correct in all respects) as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrowersuch earlier date, and (ii) a Solvency Certificate dated as of the Effective Date conditions set forth in Sections 3(c) and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;3(d) are satisfied.
(fg) the Administrative Agent The Initial First-Out Lender (or its counsel) shall have received a consent and acknowledgement relating to each Mortgage certificate dated the Amendment Effective Date from the landlord Secretary or Assistant Secretary of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall Loan Party (i) be in an amount equal to the aggregate amount attaching each Organizational Document of the First Amendment Additional Term B such Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance ProgramParty, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations attaching resolutions of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this AmendmentBoard of Directors, such Section 22 Lien Law Affidavit and a Notice Board of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member Managers or similar governing body of such Loan Party approving and authorizing the execution, delivery and performance of the First this Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that effect as of the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party Amendment Effective Date and have not been amended since or rescinded, (iii) attaching a good standing certificate from the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf applicable Governmental Authority of such Loan Party; (iii) in the case ’s jurisdiction of each Loan Partyorganization, dated as of a certificate of another officer as recent date prior to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; Amendment Effective Date and (iv) such other documents related including a customary incumbency certification (or certifying that the incumbency certification provided to the foregoing matters as Initial First-Out Lender in connection with the Administrative Agent may reasonably request;Seventh Amendment remains accurate in all respects).
(kh) the Administrative Agent The Initial First-Out Lender (or its counsel) shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalfan opinion of Cravath, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments)Borrower, and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% opinion of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP, as special New York Delaware counsel for to the Loan PartiesBorrower, the Completion Guarantor and the Equity Pledgorin each case, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Amendment Effective Date, (B) be Date and addressed to the Initial First-Out Lender and in a form reasonably acceptable to the Initial First-Out Lender (or its counsel).
(i) The Administrative Agent, the other Agents Agent and the Lenders, (C) cover such matters relating Initial First-Out Lender shall have received a Notice of Borrowing with respect to the First Amendment Documents as Tranche A Additional First-Out Loan (which shall be in the Administrative Agent form agreed by the Initial First-Out Lender and the Borrower and shall reasonably request and which are customary for transactions include an exhibit setting forth the updated 14-week cash flow budget of the type contemplated herein Borrower and (D) be otherwise its Subsidiaries in form and substance reasonably satisfactory to the Administrative AgentInitial First-Out Lender). This Amendment shall be deemed to be effective on Upon the date (the “Effective Date”) on which each satisfaction of the foregoing conditions is satisfied (such conditions set forth in this Section 3, the Initial First-Out Lender shall provide to be satisfied no later than 5pm EST on June 2, 2017)the Borrower and the other parties hereto a written acknowledgement that the Amendment Effective Date has occurred.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be become effective only if and whenas of the first date (such date being referred to as the “Amendment Agreement Effective Date”) on which each of the following conditions shall have been satisfied:
(a) this Amendment is signed by the Administrative Agent (or its counsel) shall have received from the Borrower, the Equity Pledgoreach Issuing Bank, the Completion GuarantorSwingline Lender, the other Loan Parties party hereto, the Administrative Issuing Banks Agent, each New Revolving Lender, each Extending Revolving Lender and such other Lenders as, together with the Collateral AgentExtending Revolving Lenders, shall represent the Disbursement Agent, the First Required Lenders either (i) a counterpart of this Amendment Additional Term B Lenders and signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent on behalf (which may include facsimile transmission of the Required Lenders a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(and b) the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf)a certificate, and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance Agent, of the obligations chief financial officer of the Borrower, dated the Amendment Agreement Effective Date, certifying as to the solvency of the Borrower and its Subsidiaries, taken as a whole, and of the other Loan Parties under or Parties, taken as a whole;
(c) the Administrative Agent shall have received a favorable written opinion (dated the Amendment Agreement Effective Date and addressed to the Administrative Agent, each Issuing Bank, the Issuing Banks Agent, each New Revolving Lender and each Lender) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower, in respect of this Amendmentform and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received (i) a Mortgagesuch documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, executed by the Borrower existence and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment good standing of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantorauthorization of the transactions contemplated hereby and any other legal matters relating to the Borrower, the Equity Pledgor and Loan Documents or the other Loan Parties under this Amendmenttransactions contemplated hereby, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the representations and warranties of the Borrower set forth in Section 6 hereof shall be true and correct as of the Amendment Agreement Effective Date, and the Administrative Agent shall have received (i) an Effective Date certificate a certificate, dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Amendment Agreement Effective Date and signed by the chief financial officer Chief Executive Officer or a Financial Officer of the Borrower, in each caseconfirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating received, for account of the Tranche B Lenders entitled thereto, the Amendment Fees required to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory be paid pursuant to the Administrative Agent;Section 11(a) hereof; and
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, all amounts due and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable payable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable on or prior to the Administrative Agent; Amendment Agreement Effective Date pursuant to the Loan Documents, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and (vidisbursements of counsel) required to be issued reimbursed or paid by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, Borrower hereunder or under any charges for mortgage recording taxother Loan Document, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative AgentAffiliates, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the applicable Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for all amounts due and payable on or prior to the Loan Parties, the Completion Guarantor Amendment Agreement Effective Date pursuant to certain fee letter agreements entered into in connection with this Amendment and the Equity Pledgortransactions contemplated hereby, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and (iidisbursements of counsel) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed required to be effective on reimbursed or paid by the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (Borrower pursuant to such conditions to be satisfied no later than 5pm EST on June 2, 2017)letter agreements.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Effectiveness of this Amendment. This The following conditions shall have been satisfied, as determined by Agent, before this Amendment shall be effective only if and whenis effective:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf)Amendment, and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agentby each Credit Party, each New Lender and Lenders constituting Required Lenders;
(b) the Borrower Agent shall have delivered received, in form and substance satisfactory to the Administrative Agent an amendment to the a Revolving Credit AgreementNote for each New Lender, duly executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effectBorrowers;
(c) each Agent shall have received, in form and substance satisfactory to Agent: (i) that certain Fee Letter among Borrowers, Agent and Santander Bank, National Association dated as of the date hereof, duly executed by the parties thereto, (ii) that certain Fee Letter among Borrowers, Agent and Branch Banking and Trust Company dated as of the date hereof duly executed by the parties thereto (the fee letters described in the foregoing clauses (i) and (ii), collectively, the “ New Lender Fee Letters”), and (iii) payment of all fees described in the New Lender Fee Letters;
(d) Each of the representations and warranties contained made by any Credit Party in Section 5 of or pursuant to this Amendment Amendment, the Credit Agreement and the Other Documents shall be true and correct in all material respects and(or, in furtherance thereofif such representation and warranty is, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities by its terms, limited by materiality (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”Material Adverse Effect), each dated then such representation and warranty shall be true in all respects) on and as of the Effective Date, in each case executed date hereof as if made on and delivered by a duly authorized officer as of each party thereto, in form and substance reasonably satisfactory the date hereof (except to the Administrative Agentextent any such representation or warranty specifically relates to a certain prior date);
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments theretoresolutions in form and substance reasonably satisfactory to Agent, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managersmanagement committee, managermanaging member, manager or general partner, managing member or similar governing body as applicable, of such Loan each Credit Party authorizing (as applicable) the execution, delivery and performance of this Amendment and the First Amendment Other Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted delivered by it under the Security Documentssuch Credit Party in connection herewith, in the case certified by an Authorized Officer of each Subsidiary Guarantor and the Borrower, the affirmation and ratification Credit Party as of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guarantydate hereof, and, in such certificate shall state that the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions thereby certified have not been amended, modified, revoked or rescinded or amended and are in full force and effect, (C) that the certificate as of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the such certificate with respect thereto furnished pursuant to clause (i) above and (Dii) a certificate of an Authorized Officer of each Credit Party, dated the date hereof, as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretaryofficers of each Credit Party, Assistant Secretaryas applicable, managing member or other executing this Amendment and the Other Documents contemplated to be delivered by such Credit Party in connection herewith, together with evidence of the incumbency of such Authorized Officer, in each case certified by an Authorized Officer of each Credit Party as of the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably requestdate hereof;
(kf) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments executed legal opinion, in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount Agent of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) which shall cover such matters relating incident to the First transactions contemplated by this Amendment Documents as Agent may reasonably require, and the Administrative Credit Parties hereby authorize and direct such counsel to deliver such opinions to Agent shall reasonably request and which are customary for Lenders; and
(g) All other documents and legal matters in connection with the transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This by this Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2have been delivered or executed or recorded, 2017)as required by Agent.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Effectiveness of this Amendment. (a) This Amendment (except for Sections 2, 3, 4, 5, 6 and 7) shall be become effective only if and on the date (the "Effective Date") when:
(ai) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders Company and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent Investors shall have received written direction by signed a counterpart hereof (whether the Required Lenders to execute this Amendment on their behalfsame or different counterparts), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;and
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) the Company shall have been executed paid all fees and delivered expenses of O'Melveny & ▇▇▇▇▇ LLP incurred by the parties thereto and shall be Investors in full force and effect;
(c) each of connection with or relating to the representations and warranties contained in Section 5 preparation, execution or delivery of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities other unpaid fees and the expenses of O'Melveny & ▇▇▇) ▇▇ LLP incurred by the Investors in form and substance reasonably satisfactory connection with the Purchase Agreement to the Administrative Agent for extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment and shall limit the performance generality of Section 12.4 of the obligations Purchase Agreement.
(b) Each of the Borrower Sections 2, 3, 4, 5, 6 and the other Loan Parties under or in respect 7 of this Amendment;
Amendment shall separately become effective on the date (d) the Administrative Agent shall have received (i) each, a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the "Consent Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e") the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;when:
(i) the Administrative Agent and the Collateral Agent Investors shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and copy of a duly executed amendment or amendments of the Title Company Senior Credit Agreement (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered a) consenting to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as actions contemplated by the Subsidiary GuarantySection 2, and3, in the case of each Loan Party4, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded 5 or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer6 hereof, as the case may be, executing or (b) providing for the certificate pursuant to (ii) abovesubstantive equivalent of Section 7 hereof; and (iv) provided that in each case each such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent amendment or amendments shall have received from the Borrower be in a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative AgentRequired Investors and provided, and further, that the Borrower reasonable satisfaction of each such amendment or amendments shall have borrowed loans under this Amendment be acknowledged in an aggregate principal amount of $35,000,000;writing by the Required Investors, and
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, Company shall have received written opinions paid all fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇O'Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the review of documents in connection with a Consent Effective Date and all other unpaid fees and expenses of O'Melveny & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for LLP incurred by the Loan Parties, Investors in connection with the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed Purchase Agreement to the Administrative Agent, extent the other Agents and the Lenders, (C) cover such matters relating amount thereof has been provided to the First Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment Documents as shall limit the Administrative Agent shall reasonably request and which are customary for transactions generality of Section 12.4 of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)Purchase Agreement.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be effective only if and when:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be become effective on the date (the “Effective Date”) on which each of the foregoing following conditions is satisfied or waived:
(a) the Administrative Agent (or its counsel) shall have received (x) (A) from the Required Tranche Lenders for the Term B Facility (determined before giving effect to the replacement of any Non-Consenting Term B Lenders) and each Lender holding Term B Facility Loans (after giving effect to the replacement of any Non-Consenting Term B Lenders), in each case, (i) a Consent signed on behalf of such conditions party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a Consent and (y) from the Borrower, the other Station Parties, the Replacement Term B Lender and the Administrative Agent, an executed counterpart to this Agreement;
(b) the representations and warranties set forth in Section 5 above shall be satisfied no later than 5pm EST on June 2true and correct;
(c) any fees and reasonable and documented out-of-pocket expenses (including reasonable fees, 2017charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) owing by the Borrower to the Administrative Agent and JPMCB pursuant to this Amendment or any letter agreement entered into in connection with this Amendment and invoiced at least three (3) Business Days prior to the date hereof shall have been paid in full; and
(d) (i) all Obligations of the Borrower with respect to the Term B Facility Loans owing to any Non-Consenting Term B Lender being replaced pursuant to Section 3 shall be paid in full to such Non-Consenting Term B Lender concurrently with the assignment described in Section 3, (ii) all Obligations of the Borrower with respect to the Term B Facility Loans owing to any Assigning Consenting Term B Lender shall be paid in full to such Assigning Consenting Term B Lender concurrently with the assignment described in Section 4(b)(i), (iii) all Obligations of the Borrower with respect to the Cashless Consenting Term B Lender Assigned Amount owing to any Cashless Consenting Term B Lender pursuant to a Cashless Consenting Term B Lender Assignment contemplated by Section 4(c) shall be paid in full to such Cashless Consenting Term B Lender concurrently with the assignment described in Section 4(c) and (iv) the Replacement Term B Lender shall pay to each such Non-Consenting Term B Lender, each such Assigning Consenting Term B Lender and each such Cashless Consenting Term B Lender an amount equal to (x) in the case of any Non-Consenting Term B Lender and any Assigning Consenting Term B Lender, the principal amount of the Term B Facility Loans held by such Non-Consenting Term B Lender or such Assigning Consenting Term B Lender, as applicable, in each case, plus accrued and unpaid interest thereon, and (y) in the case of any Cashless Consenting Term B Lender, the Cashless Consenting Term B Lender Assigned Amount of such Cashless Consenting Term B Lender, in each case, plus accrued and unpaid interest thereon.
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Effectiveness of this Amendment. This Amendment shall be effective only if and when:
(a) this Amendment is signed by the BorrowerLoan Parties, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party heretoPubCo, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders Agent and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) PubCo shall have executed and delivered to the Borrower Administrative Agent a Pledge Agreement Supplement that is substantially in the form of Exhibit F attached hereto and shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by or its designated custodian all membership interest certificates representing its direct Equity Interests in the Borrower;
(c) PubCo, the Equity PledgorAdministrative Agent, Wilmington Trust, National Association and the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by to the parties thereto and shall be Administrative Agent a supplement to the Custodian Agreement that is substantially in full force and effectthe form of Exhibit G attached hereto;
(cd) PubCo, the Administrative Agent and the applicable Loan Parties shall have executed and delivered to the Administrative Agent the Pledge Agreement Amendment;
(e) the Administrative Agent shall have received evidence reasonably satisfactory to it, that the initial public offering of PubCo stock described in the Form S-1 Registration Statement filed by PubCo with the U.S. Securities and Exchange Commission (File No. 333-207397), shall have occurred or shall occur substantially concurrently with the Effective Date;
(f) the Administrative Agent shall have received evidence reasonably satisfactory to it that the acquisition by the Borrower and its Subsidiaries of all of the Equity Interests in the ▇▇▇▇▇▇▇▇ Entities shall have occurred or shall occur substantially concurrently with the Effective Date;
(g) the Administrative Agent shall have received evidence reasonably satisfactory to it that each of the Management Agreements in effect as of the Effective Date shall have been terminated;
(h) each of the representations and warranties contained in Section 5 4 of this Amendment shall be true and correct in all material respects and, in furtherance thereof, each of the Borrower Loan Parties and PubCo shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of each of the Borrower and the other Loan Parties and PubCo under or in respect of this Amendment;
(di) the Administrative Agent shall have received legal opinions reasonably satisfactory to it from the counsel to the Loan Parties and PubCo with respect to Nevada, New York, California and Delaware law matters;
(ij) a Mortgagethe Administrative Agent shall have received, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each Responsible Officer or other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as authorized signatory of the Effective Date, in each case executed signing Loan Party and delivered by a duly authorized officer of each PubCo that is party thereto, thereto and in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as , such certificates of the Effective Date and signed by a Financial Officer resolutions or other authorized officer action, incumbency certificates and/or other certificates of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord Responsible Officers of each material leased Real Property that constitutes Mortgaged Property, in form Loan Party and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage PubCo as the Administrative Agent may reasonably requestrequire evidencing the identity, authority and capacity of each Responsible Officer or other authorized signatory thereof authorized to act as a Responsible Officer and/or execute documents in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent connection with this Amendment and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable other Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person Loan Party or PubCo is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated party or is to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown a party on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably requestEffective Date;
(k) the Administrative Agent shall have received from for the Borrower a notice account of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form each Lender that executes and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under delivers this Amendment prior to 5:00pm New York time on April 6, 2016, a cash fee (due and payable only upon satisfaction of subclause 5(e) above) in an aggregate principal the amount of $35,000,0000.05% of such Lender’s aggregate Term Loans and Revolving Credit Commitments outstanding on such date;
(l) the First Amendment Additional Term B LendersBorrower shall have paid all other fees and expenses owed to the Administrative Agent, the Lenders, the Agents Joint Lead Arrangers and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party Lenders (including fees and the Borrower, expenses of counsel) accrued through and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date to such Administrative Agent, Joint Lead Arrangers and Lenders (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitmentsor to such counsel), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself Agent and the Lenders, Lenders shall have received written opinions of received, at least five (i5) ▇▇▇▇Business Days prior to the Effective Date (or such shorter time period as agreed to by such Persons), Weissall documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, Rifkindincluding, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Partieswithout limitation, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative AgentPatriot Act. This Amendment shall be deemed to be effective on the date (the “Effective Date”) on which each all of the foregoing conditions is are satisfied (such conditions to be satisfied no later than July 5pm EST on June 2, 20172016).
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Effectiveness of this Amendment. This Amendment Agreement and the Restated Credit Agreement shall be become effective only if and whenas of the date (the “Restatement Effective Date”) on which each of the following shall have been satisfied or waived:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, the Swingline Lender and each Person whose name appears on Schedule 2.01 hereto, (i) a Mortgage, executed by the Borrower and the Golf Sub, counterpart of this Amendment Agreement signed on behalf of such party or (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance written evidence reasonably satisfactory to the Administrative AgentAgent (which may include facsimile or other electronic imaging means of a signed signature page of this Agreement) that such party has signed a counterpart of this Amendment Agreement;
(eb) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Issuing Banks, the Swingline Lender and the Post-Effectiveness Lenders and dated the Restatement Effective Date) of (i) an Effective Date certificate dated as of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, Borrowers and (ii) a Solvency Certificate dated as ▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the Effective Date and signed by the chief financial officer of the BorrowerCompany, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(fc) the Administrative Agent shall have received a consent such documents and acknowledgement certificates as the Administrative Agent or its counsel may reasonably request relating to each Mortgage from the landlord organization, existence and good standing of each material leased Real Property that constitutes Mortgaged PropertyBorrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(gd) the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President and Chief Executive Officer, a Vice President or a Financial Officer of the Company, confirming (i) the accuracy of the representations and warranties set forth in Section 3 hereof and (ii) confirming the satisfaction of the condition set forth in clause (e) below;
(e) the Guarantee Requirement shall be satisfied;
(f) the Administrative Agent and the Collateral Agent each Lender shall have received all documentation and other information requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the Anti-terrorism Act (Canada), not fewer than five Business Days prior to the Restatement Effective Date;
(g) the Borrowers shall have paid, or substantially concurrently with the satisfaction of the other conditions precedent set forth in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall this Section shall, pay (i) be all accrued but unpaid fees referred to in an amount equal to Section 2.12(a) and 2.12(b)(i) under the aggregate amount of Existing Credit Agreement, as well as all other amounts owing to, or accrued for account under the First Amendment Additional Term B Loan Commitments; Existing Credit Agreement for the account of, any Lender under the Existing Credit Agreement whose name is not set forth on Schedule 2.01 hereto and (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security all accrued but unpaid interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;Existing Canadian Prime Rate Borrowings; and
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid hereunder, under the by any Loan Agreement Party hereunder or under any engagement or fee letter entered into by such party other Loan Document. The Administrative Agent shall notify the Company and the Borrower, and all expenses required to be paid hereunder, under Lenders of the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Restatement Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of and such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment notice shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)conclusive and binding.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be effective only if and when:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be become effective on the date (the “Effective Date”) on which each when:
(i) all unpaid, due and owing interest in respect of the foregoing conditions is satisfied Notes (for clarification purposes, the aggregate amount of such conditions unpaid, due and owing interest as of March 30, 2004 equals $2,353,463.00) shall have been received by the Investors,
(ii) the Company and the Investors shall have signed a counterpart hereof (whether the same or different counterparts),
(iii) each Investor shall have received, by wire transfer to an account designated by such Investor, an amendment fee in an amount for such Investor equal to 0.50% of the outstanding principal amount of the Notes held by such Investor (and such amendment fee shall be satisfied no later than 5pm EST fully earned and non-refundable on June the Effective Date),
(iv) the Company shall have paid all fees and expenses of O’Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with or relating to the preparation, execution or delivery of this Amendment and all other unpaid fees and expenses of O’Melveny & ▇▇▇▇▇ LLP incurred by the Investors in connection with the Purchase Agreement to the extent the amount thereof has been provided to the Company prior to the execution and delivery of this Amendment; provided, however, that nothing in this Amendment shall limit the generality of Section 12.4 of the Purchase Agreement,
(v) the Investors shall have received a copy of a duly executed amendment of the Senior Credit Agreement (which amendment shall include, among other matters, a consent with respect to the increase in the Stated Rate contemplated by this Amendment), in form and substance reasonably satisfactory to the Required Investors,
(vi) the Investors shall have received a copy of a duly executed amendment of the Sale and Leaseback Documents, in form and substance reasonably satisfactory to the Required Investors,
(vii) the Investors shall have received a certificate of the Company attaching and attesting to the accuracy and completeness of the following:
(1) a copy of the certificate of incorporation and by-laws of the Company, as amended through the date hereof,
(2) the incumbency and signatures of the officers of the Company executing this Amendment,
(3) a copy of the resolutions of the Board of the Company approving and authorizing the execution, 2017)delivery and performance of this Amendment and the consummation of the transactions contemplated hereby, certified by the Secretary or Assistant Secretary as of the Effective Date, which certificate shall be in form and substance satisfactory to the Required Investors and shall state that the resolutions thereby certified are in full force and effect and have not been amended, modified, revoked or rescinded, and
(viii) the Investors shall have received a long form good standing certificate, dated as of a recent date, from the State of Minnesota in respect of the Company.
Appears in 1 contract
Effectiveness of this Amendment. This Amendment shall be effective only if and when:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders Agent and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf)Lenders, and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Term Loan Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto thereto, the Term Loan Administrative Agent and the Revolving Administrative Agentother parties thereto, which amendment shall (i) permit provide for an increase in Term B Loans (as defined in the transactions contemplated by this Amendment, Building Loan Agreement) in an aggregate principal amount of not more than $35,000,000 and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 3 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received (i) a Mortgage, executed by the Borrower and the Golf Sub, (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received (i) an Effective Date certificate dated as of the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, and (ii) a Solvency Certificate dated as of the Effective Date and signed by the chief financial officer of the Borrower, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a consent and acknowledgement relating to each Mortgage from the landlord of each material leased Real Property that constitutes Mortgaged Property, in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property certificates, together with this Amendment and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(j) the Administrative Agent shall have received (i) a copy of the certificate of formation or organization, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably request;
(k) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger shall have received all Fees required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into executed by such party and the Borrower, and all expenses required to be paid hereunder, under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments), and (ii) for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% of the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan Commitment; and
(m) the Administrative Agent, on behalf of itself and the Lenders, shall have received written opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for the Loan Parties, the Completion Guarantor and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Effective Date, (B) be addressed to the Administrative Agentother Loan Parties under this Amendment, the other Agents and the Lenders, (C) cover such matters relating to the “First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment shall be deemed to be effective on the date (the “Effective DateDocuments”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017).; and
Appears in 1 contract
Effectiveness of this Amendment. This Amendment Agreement and the Fifth Restated Credit Agreement shall be become effective only if and whenas of the date (the “Fifth Restatement Effective Date”) on which each of the following conditions shall have been satisfied or waived:
(a) this Amendment is signed by the Borrower, the Equity Pledgor, the Completion Guarantor, the other Loan Parties party hereto, the Administrative Agent, the Collateral Agent, the Disbursement Agent, the First Amendment Additional Term B Lenders and the Administrative Agent on behalf of the Required Lenders (and the Administrative Agent shall have received written direction by the Required Lenders to execute this Amendment on their behalf), and each such party shall have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) the Borrower shall have delivered to the Administrative Agent an amendment to the Revolving Credit Agreement, executed by the Borrower, the Equity Pledgor, the other Loan Parties party thereto and the Revolving Administrative Agent, which amendment shall (i) permit the transactions contemplated by this Amendment, and (ii) have been executed and delivered by the parties thereto and shall be in full force and effect;
(c) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all respects and, in furtherance thereof, the Borrower shall have received all necessary approvals and/or consents from the Governmental Authorities (including Gaming Authorities and the ▇▇▇) in form and substance reasonably satisfactory to the Administrative Agent for the execution and delivery of this Amendment and the performance of the obligations of the Borrower and the other Loan Parties under or in respect of this Amendment;
(d) the Administrative Agent shall have received from the Company and each other Loan Party, each Issuing Bank, each Swingline Lender and each Lender whose name appears on Schedule 2.01 hereto (i) a Mortgage, executed by the Borrower and the Golf Sub, counterpart of this Amendment Agreement signed on behalf of such party or (ii) a Mortgage, executed by the EV Sub, (iii) an Assignment of Leases and Rents, executed by the Borrower and the Golf Sub, and (iv) an Assignment of Leases and Rents, executed by the EV Sub (collectively, the “First Amendment Real Estate Documents” and, together with this Amendment and each other document required to be executed by the Borrower, the Completion Guarantor, the Equity Pledgor and the other Loan Parties under this Amendment, the “First Amendment Documents”), each dated as of the Effective Date, in each case executed and delivered by a duly authorized officer of each party thereto, in form and substance written evidence reasonably satisfactory to the Administrative AgentAgent (which may include transmission by facsimile or other electronic imaging of a signed signature page of this Amendment Agreement) that such party has signed a counterpart of this Amendment Agreement;
(eb) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders and dated the Fifth Restatement Effective Date) of each of (i) an Effective Date certificate dated as of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Effective Date and signed by a Financial Officer or other authorized officer of the Borrower, Borrowers and (ii) a Solvency Certificate dated as ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, Group General Counsel and Secretary of the Effective Date and signed by the chief financial officer of the BorrowerCompany, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(fc) the Administrative Agent shall have received a consent such documents and acknowledgement certificates as the Administrative Agent or its counsel may reasonably request relating to each Mortgage from the landlord organization, existence and good standing of each material leased Real Property that constitutes Mortgaged PropertyBorrower, the authorization of the transactions contemplated hereby and any other legal matters relating to the Borrowers, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and the Collateral Agent shall have received in respect of each Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance or unconditional commitment to issue a title policy for such insurance. Each such policy shall (i) be in an amount equal to the aggregate amount of the First Amendment Additional Term B Loan Commitments; (ii) insure that the Mortgage insured thereby creates a valid Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (iii) name the Collateral Agent, for the benefit of the Secured Parties, as the insured thereunder; (iv) be in the form of an ALTA Loan Policy acceptable to the Administrative Agent; (v) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent; and (vi) be issued by the Title Company. The Administrative Agent and the Collateral Agent shall have received evidence reasonably satisfactory to each of them that all premiums in respect of each such policy, any charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid on the Effective Date and that all mortgage tax and related affidavits, if any, have been delivered to the Title Company;
(h) the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board;
(i) the Administrative Agent and the Collateral Agent shall have received a Section 22 Lien Law Affidavit in form and substance reasonably satisfactory to them and the Title Company (the “Revised Section 22 Lien Law Affidavit”). The Borrower shall have delivered to the Title Company for filing in the appropriate public records this Amendment, such Section 22 Lien Law Affidavit and a Notice of Lending in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent;
(jd) the Administrative Agent shall have received (i) a copy of the certificate of formation or organizationcertificate, articles of incorporation, certificate of limited partnership or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary, managing member or other Authorized Officer of each Loan Party dated the Fifth Restatement Effective Date and certifying (A) that attached thereto is signed by the President and Chief Executive Officer, a true and complete copy Vice President or a Financial Officer of the limited liability company agreementCompany, operating agreement, by-laws, limited partnership agreement or other such Governing Document of such Loan Party as in effect on confirming the Effective Date and at all times since a date prior to the date accuracy of the resolutions described in clause (B) below, (B) that attached thereto is a true representations and complete copy of resolutions duly adopted by the board of directors, board of managers, manager, general partner, managing member or similar governing body of such Loan Party authorizing the execution, delivery and performance of the First Amendment Documents to which such Person is a party, and in the case of the Borrower, the borrowings hereunder, in the case of each other Loan Party, the affirmation and ratification of the granting of the Liens contemplated to be granted by it under the Security Documents, in the case of each Subsidiary Guarantor and the Borrower, the affirmation and ratification of the Guaranteeing of the Obligations as contemplated by the Subsidiary Guaranty, and, in the case of each Loan Party, the affirmation and ratification of the guarantees and other obligations warranties set forth in the Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation, articles or certificate of organization, articles of incorporation, certificate of limited partnership or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate with respect thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer or other authorized signatory executing any First Amendment Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) in the case of each Loan Party, a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary, managing member or other Authorized Officer, as the case may be, executing the certificate pursuant to (ii) above; and (iv) such other documents related to the foregoing matters as the Administrative Agent may reasonably requestSection 3;
(ke) the Administrative Agent shall have received from the Borrower a notice of Borrowing with respect to the First Amendment Additional Term B Loan Commitments in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall have borrowed loans under this Amendment in an aggregate principal amount of $35,000,000;
(l) the First Amendment Additional Term B Lenders, the Lenders, the Agents and the Lead Arranger each Lender shall have received all Fees required to be paid hereunderdocumentation and other information requested by it for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, under including the Loan Agreement or under any engagement or fee letter entered into by such party USA PATRIOT Act, the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the BorrowerAnti-terrorism Act (Canada), not fewer than five Business Days prior to the Fifth Restatement Effective Date;
(f) the Borrowers shall have paid, or substantially concurrently with the satisfaction of the other conditions precedent set forth in this Section shall pay, (i) the principal and all interest accrued on any outstanding Borrowings, and all expenses required fees referred to be paid hereunderin Section 2.12(a) and 2.12(b)(i), accrued but unpaid to the Fifth Restatement Effective Date under the Loan Agreement or under any engagement or fee letter entered into by such party and the Borrower for which invoices have been presented, before the Effective Date, including (i) for each Lender that has directed the Administrative Agent to execute this Amendment on its behalf, an amendment fee equal to 0.05% of such Lender’s Commitments and Loans immediately prior to the Effective Date (for purposes of clarification, other than any First Amendment Additional Term B Loan Commitments)Fourth Restated Credit Agreement, and (ii) any other amounts owing to, or accrued under the Fourth Restated Credit Agreement for each First Amendment Additional Term B Lender, an upfront fee equal to 0.25% the account of any Lender under the aggregate principal amount of such First Amendment Additional Term B Lender’s First Amendment Additional Term B Loan CommitmentFourth Restated Credit Agreement that will not continue as a Lender under the Fifth Restated Credit Agreement; and
(mg) the Administrative Agent, on behalf of itself Agent and the Lenders, each Lender shall have received written opinions all fees and other amounts due and payable on or prior to the Fifth Restatement Effective Date in connection with this Amendment Agreement, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (iincluding fees, charges and disbursements of counsel) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York counsel for required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document. The Administrative Agent shall notify the Loan Parties, the Completion Guarantor Company and the Equity Pledgor, and (ii) Fox Rothschild LLP, as special New York counsel for Lenders of the Loan Parties, the Equity Pledgor and the Completion Guarantor, each such opinion to (A) be dated the Fifth Restatement Effective Date, (B) be addressed to the Administrative Agent, the other Agents and the Lenders, (C) cover such matters relating to the First Amendment Documents as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent. This Amendment notice shall be deemed to be effective on the date (the “Effective Date”) on which each of the foregoing conditions is satisfied (such conditions to be satisfied no later than 5pm EST on June 2, 2017)conclusive and binding.
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