Fourth Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall become effective on the date that all of the following conditions shall have been satisfied (or waived in accordance with Section 9.2): (a) The Administrative Agent (or its counsel) shall have received (x) from each party hereto a counterpart of this Agreement and (y) from Holdings, the Lead Borrower and each Guarantor (i) a counterpart of a Guaranty Agreement and (ii) a counterpart of the Security Agreement, in each case signed on behalf of parties (which may include facsimile or other electronic transmission of a signed signature page of any such agreement). (b) The Administrative Agent shall have received a Note executed by the Lead Borrower (which may include facsimile or other electronic transmission of a signed signature page of such Note, provided that arrangements reasonably satisfactory to the Administrative Agent have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Fourth Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on the Fourth Restatement Effective Date if on such date it has not returned to the Lead Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Lead Borrower), if any, issued to such Lender as a lender under the Third Amended and Restated Credit Agreement. (c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Fourth Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Lead Borrower, in form and substance reasonably satisfactory to the Administrative Agent. The Lead Borrower hereby requests such counsel to deliver such opinion. (d) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each Loan Party approving the transactions contemplated by the Loan Documents to which it is a party and the execution and delivery of such Loan Documents to be delivered by such entity on the Fourth Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Fourth Restatement Effective Date relating to the organization, existence and good standing of each Loan Party and authorization of the transactions contemplated hereby. (e) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (x) the names and true signatures of the officers of each Loan Party authorized to sign the Loan Documents to which each Loan Party, as applicable, is a party, to be delivered by such entity on the Fourth Restatement Effective Date, and (y) the other documents required to be delivered pursuant to Section 4.1(d) on the Fourth Restatement Effective Date. (f) The Administrative Agent shall have received a certificate, dated the Fourth Restatement Effective Date and signed on behalf of the Lead Borrower by a Responsible Officer or a Financial Officer of the Lead Borrower, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2 as of the Fourth Restatement Effective Date. (g) The Lenders shall have received (i) audited consolidated financial statements of Holdings for the three most recent fiscal years ended at least 90 days prior to the Fourth Restatement Effective Date as to which financial statements are available and (ii) unaudited interim consolidated financial statements of Holdings for each quarterly period ended subsequent to the date of the latest financial statements pursuant to clause (i) of this paragraph and at least 45 days prior to the Fourth Restatement Effective Date as to which financial statements are available. (h) The items set forth in Section 9.19(a) shall have occurred on or substantially simultaneously with the occurrence of the Fourth Restatement Effective Date and the Former Agent shall have received from the Lead Borrower payment of all fees and out-of-pocket costs and expenses outstanding immediately prior to the Fourth Restatement Effective Date. (i) The Lenders, the Administrative Agent, and the Arrangers shall have received all fees and expenses required to be paid by the applicable Loan Parties (including, without limitation, the reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent) for which invoices have been presented to the Lead Borrower at least 3 Business Days prior to the Fourth Restatement Effective Date (or such later date as the Lead Borrower shall permit in its reasonable discretion). (j) The Administrative Agent shall have received, at least three Business Days prior to the Fourth Restatement Effective Date, solely in respect of the Lead Borrower and Holdings, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, to the extent requested by any Lender at least ten Business Days prior to the Fourth Restatement Effective Date. (k) Subject to the provisions of Section 5.10, the Administrative Agent shall have executed a customary joinder agreement to the Intercreditor Agreement and, in addition, shall have received the following: (i) UCC financing statements for each Loan Party in each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, including any UCC amendment statements to assign the security interest from M▇▇▇▇▇ S▇▇▇▇▇▇, in its capacity as administrative agent under the Third Amended and Restated Credit Agreement, to the Administrative Agent; and (ii) to the extent required under the laws of the relevant jurisdiction for perfecting (or achieving the required priority with respect to) a security interest in Equity Interests pledged as Collateral for the Obligations (or any portion thereof), all certificates evidencing such Equity Interests that are issued by any Subsidiary of Holdings and that are pledged to the Administrative Agent pursuant to any Collateral Document together with duly executed in blank, undated stock powers attached thereto. (l) The Administrative Agent shall have received each of the following with respect to any Existing Mortgage: (i) An assignment of such Existing Mortgage from the Former Agent to the Administrative Agent's in form and substance reasonably satisfactory to the Administrative Agent; and (ii) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located, and if such property is in a special flood hazard area, duly executed and acknowledged by the appropriate Loan Party, together with evidence of flood insurance as and to the extent required under Section 5.5 hereof. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Fourth Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Fourth Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall become effective on the date that all of the following conditions shall have been satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received (x) from each party hereto a counterpart of this Agreement and (y) from Holdings, the Lead Borrower and each Guarantor (i) a counterpart of a Guaranty Agreement and (ii) a counterpart of the Security Agreement, in each case signed on behalf of parties (which may include facsimile or other electronic transmission of a signed signature page of any such agreement).
(b) The Administrative Agent shall have received a Note executed by the Lead Borrower (which may include facsimile or other electronic transmission of a signed signature page of such Note, provided that arrangements reasonably satisfactory to the Administrative Agent have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Fourth Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on the Fourth Restatement Effective Date if on such date it has not returned to the Lead Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Lead Borrower), if any, issued to such Lender as a lender under the Third Amended and Restated Credit Agreement.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Fourth Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP, counsel for the Lead Borrower, in form and substance reasonably satisfactory to the Administrative Agent. The Lead Borrower hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each Loan Party approving the transactions contemplated by the Loan Documents to which it is a party and the execution and delivery of such Loan Documents to be delivered by such entity on the Fourth Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Fourth Restatement Effective Date relating to the organization, existence and good standing of each Loan Party and authorization of the transactions contemplated hereby.
(e) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (x) the names and true signatures of the officers of each Loan Party authorized to sign the Loan Documents to which each Loan Party, as applicable, is a party, to be delivered by such entity on the Fourth Restatement Effective Date, and (y) the other documents required to be delivered pursuant to Section 4.1(d) on the Fourth Restatement Effective Date.
(f) The Administrative Agent shall have received a certificate, dated the Fourth Restatement Effective Date and signed on behalf of the Lead Borrower by a Responsible Officer or a Financial Officer of the Lead Borrower, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2 as of the Fourth Restatement Effective Date.
(g) The Lenders shall have received (i) audited consolidated financial statements of Holdings for the three most recent fiscal years ended at least 90 days prior to the Fourth Restatement Effective Date as to which financial statements are available and (ii) unaudited interim consolidated financial statements of Holdings for each quarterly period ended subsequent to the date of the latest financial statements pursuant to clause (i) of this paragraph and at least 45 days prior to the Fourth Restatement Effective Date as to which financial statements are available.
(h) The items set forth in Section 9.19(a) shall have occurred on or substantially simultaneously with the occurrence of the Fourth Restatement Effective Date and the Former Agent shall have received from the Lead Borrower payment of all fees and out-of-pocket costs and expenses outstanding immediately prior to the Fourth Restatement Effective Date.
(i) The Lenders, the Administrative Agent, and the Arrangers shall have received all fees and expenses required to be paid by the applicable Loan Parties (including, without limitation, the reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent) for which invoices have been presented to the Lead Borrower at least 3 Business Days prior to the Fourth Restatement Effective Date (or such later date as the Lead Borrower shall permit in its reasonable discretion).
(j) The Administrative Agent shall have received, at least three Business Days prior to the Fourth Restatement Effective Date, solely in respect of the Lead Borrower and Holdings, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, to the extent requested by any Lender at least ten Business Days prior to the Fourth Restatement Effective Date.
(k) Subject to the provisions of Section 5.10, the Administrative Agent shall have executed a customary joinder agreement to the Intercreditor Agreement and, in addition, shall have received the following:
(i) UCC financing statements for each Loan Party in each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, including any UCC amendment statements to assign the security interest from M▇▇▇▇▇▇ S▇▇▇▇▇▇▇, in its capacity as administrative agent under the Third Amended and Restated Credit Agreement, to the Administrative Agent; and
(ii) to the extent required under the laws of the relevant jurisdiction for perfecting (or achieving the required priority with respect to) a security interest in Equity Interests pledged as Collateral for the Obligations (or any portion thereof), all certificates evidencing such Equity Interests that are issued by any Subsidiary of Holdings and that are pledged to the Administrative Agent pursuant to any Collateral Document together with duly executed in blank, undated stock powers attached thereto.
(l) The Administrative Agent shall have received each of the following with respect to any Existing Mortgage:
(i) An assignment of such Existing Mortgage from the Former Agent to the Administrative Agent's in form and substance reasonably satisfactory to the Administrative Agent; and
(ii) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located, and if such property is in a special flood hazard area, duly executed and acknowledged by the appropriate Loan Party, together with evidence of flood insurance as and to the extent required under Section 5.5 hereof. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Fourth Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Fourth Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall become effective on the date that all of the following conditions shall have been satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received (x) from each party hereto a counterpart of this Agreement and (y) from Holdings, the Lead Borrower and each Guarantor (i) a counterpart of a Guaranty Agreement and (ii) a counterpart of the Security Agreement, in each case signed on behalf of parties (which may include facsimile or other electronic transmission of a signed signature page of any such agreement).
(b) The Administrative Agent shall have received a Note executed by the Lead Borrower (which may include facsimile or other electronic transmission of a signed signature page of such Note, provided that arrangements reasonably satisfactory to the Administrative Agent have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Fourth Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on the Fourth Restatement Effective Date if on such date it has not returned to the Lead Borrower the original note (unless such Lender ▇▇▇▇▇▇ has made other arrangements reasonably satisfactory to the Lead Borrower), if any, issued to such Lender as a lender under the Third Amended and Restated Credit Agreement.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Fourth Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP, counsel for the Lead Borrower, in form and substance reasonably satisfactory to the Administrative Agent. The Lead Borrower hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each Loan Party approving the transactions contemplated by the Loan Documents to which it is a party and the execution and delivery of such Loan Documents to be delivered by such entity on the Fourth Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Fourth Restatement Effective Date relating to the organization, existence and good standing of each Loan Party and authorization of the transactions contemplated hereby.
(e) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (x) the names and true signatures of the officers of each Loan Party authorized to sign the Loan Documents to which each Loan Party, as applicable, is a party, to be delivered by such entity on the Fourth Restatement Effective Date, and (y) the other documents required to be delivered pursuant to Section 4.1(d) on the Fourth Restatement Effective Date.
(f) The Administrative Agent shall have received a certificate, dated the Fourth Restatement Effective Date and signed on behalf of the Lead Borrower by a Responsible Officer or a Financial Officer of the Lead Borrower, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2 as of the Fourth Restatement Effective Date.
(g) The Lenders shall have received (i) audited consolidated financial statements of Holdings for the three most recent fiscal years ended at least 90 days prior to the Fourth Restatement Effective Date as to which financial statements are available and (ii) unaudited interim consolidated financial statements of Holdings for each quarterly period ended subsequent to the date of the latest financial statements pursuant to clause (i) of this paragraph and at least 45 days prior to the Fourth Restatement Effective Date as to which financial statements are available.
(h) The items set forth in Section 9.19(a) shall have occurred on or substantially simultaneously with the occurrence of the Fourth Restatement Effective Date and the Former Agent shall have received from the Lead Borrower payment of all fees and out-of-pocket costs and expenses outstanding immediately prior to the Fourth Restatement Effective Date.
(i) The Lenders, the Administrative Agent, and the Arrangers shall have received all fees and expenses required to be paid by the applicable Loan Parties (including, without limitation, the reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent) for which invoices have been presented to the Lead Borrower at least 3 Business Days prior to the Fourth Restatement Effective Date (or such later date as the Lead Borrower shall permit in its reasonable discretion).
(j) The Administrative Agent shall have received, at least three Business Days prior to the Fourth Restatement Effective Date, solely in respect of the Lead Borrower and Holdings, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, to the extent requested by any Lender at least ten Business Days prior to the Fourth Restatement Effective Date.
(k) Subject to the provisions of Section 5.10, the Administrative Agent shall have executed a customary joinder agreement to the Intercreditor Agreement and, in addition, shall have received the following:
(i) UCC financing statements for each Loan Party in each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, including any UCC amendment statements to assign the security interest from M▇▇▇▇▇▇ S▇▇▇▇▇▇▇, in its capacity as administrative agent under the Third Amended and Restated Credit Agreement, to the Administrative Agent; and
(ii) to the extent required under the laws of the relevant jurisdiction for perfecting (or achieving the required priority with respect to) a security interest in Equity Interests pledged as Collateral for the Obligations (or any portion thereof), all certificates evidencing such Equity Interests that are issued by any Subsidiary of Holdings and that are pledged to the Administrative Agent pursuant to any Collateral Document together with duly executed in blank, undated stock powers attached thereto.
(l) The Administrative Agent shall have received each of the following with respect to any Existing Mortgage:
(i) An assignment of such Existing Mortgage from the Former Agent to the Administrative Agent's in form and substance reasonably satisfactory to the Administrative Agent; and
(ii) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located, and if such property is in a special flood hazard area, duly executed and acknowledged by the appropriate Loan Party, together with evidence of flood insurance as and to the extent required under Section 5.5 hereof. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Fourth Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Fourth Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall become effective on the date that all of the following conditions shall have been satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received (x) from each party hereto a counterpart of this Agreement and (y) from Holdings, the Lead Borrower and each Guarantor (i) a counterpart of a Guaranty Agreement and (ii) a counterpart of the Security Agreement, in each case signed on behalf of parties (which may include facsimile or other electronic transmission of a signed signature page of any such agreement).
(b) The Administrative Agent shall have received a Note executed by the Lead Borrower (which may include facsimile or other electronic transmission of a signed signature page of such Note, provided that arrangements reasonably satisfactory to the Administrative Agent have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Fourth Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on the Fourth Restatement Effective Date if on such date it has not returned to the Lead Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Lead Borrower), if any, issued to such Lender as a lender under the Third Amended and Restated Credit Agreement.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Fourth Restatement Effective Date) of Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP, counsel for the Lead Borrower, in form and substance reasonably satisfactory to the Administrative Agent. The Lead Borrower hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each Loan Party approving the transactions contemplated by the Loan Documents to which it is a party and the execution and delivery of such Loan Documents to be delivered by such entity on the Fourth Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Fourth Restatement Effective Date relating to the organization, existence and good standing of each Loan Party and authorization of the transactions contemplated hereby.
(e) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (x) the names and true signatures of the officers of each Loan Party authorized to sign the Loan Documents to which each Loan Party, as applicable, is a party, to be delivered by such entity on the Fourth Restatement Effective Date, and (y) the other documents required to be delivered pursuant to Section 4.1(d) on the Fourth Restatement Effective Date.
(f) The Administrative Agent shall have received a certificate, dated the Fourth Restatement Effective Date and signed on behalf of the Lead Borrower by a Responsible Officer or a Financial Officer of the Lead Borrower, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2 as of the Fourth Restatement Effective Date.
(g) The Lenders shall have received (i) audited consolidated financial statements of Holdings for the three most recent fiscal years ended at least 90 days prior to the Fourth Restatement Effective Date as to which financial statements are available and (ii) unaudited interim consolidated financial statements of Holdings for each quarterly period ended subsequent to the date of the latest financial statements pursuant to clause (i) of this paragraph and at least 45 days prior to the Fourth Restatement Effective Date as to which financial statements are available.
(h) The items set forth in Section 9.19(a) shall have occurred on or substantially simultaneously with the occurrence of the Fourth Restatement Effective Date and the Former Agent shall have received from the Lead Borrower payment of all fees and out-of-pocket costs and expenses outstanding immediately prior to the Fourth Restatement Effective Date.
(i) The Lenders, the Administrative Agent, and the Arrangers shall have received all fees and expenses required to be paid by the applicable Loan Parties (including, without limitation, the reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent) for which invoices have been presented to the Lead Borrower at least 3 Business Days prior to the Fourth Restatement Effective Date (or such later date as the Lead Borrower shall permit in its reasonable discretion).
(j) The Administrative Agent shall have received, at least three Business Days prior to the Fourth Restatement Effective Date, solely in respect of the Lead Borrower and Holdings, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, to the extent requested by any Lender at least ten Business Days prior to the Fourth Restatement Effective Date.
(k) Subject to the provisions of Section 5.10, the Administrative Agent shall have executed a customary joinder agreement to the Intercreditor Agreement and, in addition, shall have received the following:
(i) UCC financing statements for each Loan Party in each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, including any UCC amendment statements to assign the security interest from M▇▇▇▇▇ S▇▇▇▇▇▇, in its capacity as administrative agent under the Third Amended and Restated Credit Agreement, to the Administrative Agent; and
(ii) to the extent required under the laws of the relevant jurisdiction for perfecting (or achieving the required priority with respect to) a security interest in Equity Interests pledged as Collateral for the Obligations (or any portion thereof), all certificates evidencing such Equity Interests that are issued by any Subsidiary of Holdings and that are pledged to the Administrative Agent pursuant to any Collateral Document together with duly executed in blank, undated stock powers attached thereto.
(l) The Administrative Agent shall have received each of the following with respect to any Existing Mortgage:
(i) An assignment of such Existing Mortgage from the Former Agent to the Administrative Agent's in form and substance reasonably satisfactory to the Administrative Agent; and
(ii) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located, and if such property is in a special flood hazard area, duly executed and acknowledged by the appropriate Loan Party, together with evidence of flood insurance as and to the extent required under Section 5.5 hereof. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Fourth Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Fourth Restatement Effective Date. The obligations of the Lenders to make Loans (a) This Amended and of the Issuing Banks to issue Letters of Restated Credit hereunder Agreement shall become effective on upon, and only upon, the date that all satisfaction of the following conditions shall have been satisfied (or waived in accordance with Section 9.2):precedent:
(a) The Administrative Agent (or its counsel) shall have received (x) from each party hereto a counterpart of this Agreement and (y) from Holdings, the Lead Borrower and each Guarantor (i) a counterpart of a Guaranty Agreement and (ii) a counterpart of the Security Agreement, in each case signed on behalf of parties (which may include facsimile or other electronic transmission of a signed signature page of any such agreement).
(b) The Administrative Agent shall have received a Note executed by from the Lead Borrower (which may include facsimile or other electronic transmission of a signed signature page of such Note, provided that arrangements reasonably satisfactory to the Administrative Agent have been made for delivery Acquired Company and each subsidiary of the original copies thereof) in favor of each Lender requesting Acquired Company that is a Note reasonably in advance Designated Subsidiary, a Joinder Agreement dated as of the Fourth Restatement Effective Date. Notwithstanding Date and executed by the foregoingAcquired Company or such Designated Subsidiary, no Lender under which the Acquired Company or such Designated Subsidiary shall become a party to this Agreement as a Loan Guarantor (and, if the Company shall so request and the conditions of Section 2.22 shall be entitled to receive met, a Note on Borrowing Subsidiary) and an instrument in the Fourth Restatement Effective Date if on form specified in the Restated Security Agreement under which such date it has not returned Person becomes a party to the Lead Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Lead Borrower), if any, issued to such Lender as a lender under the Third Amended and Restated Credit Security Agreement.
(cii) The Administrative Agent and the Lenders shall have received a favorable written opinion (addressed to the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks and dated the Fourth Restatement Effective Date) of Skaddencounsel to the Borrowers and the other Loan Parties as the Administrative Agent shall reasonably request, Arpseach such opinion to be in form, Slatescope and substance reasonably satisfactory to the Administrative Agent and the Lenders.
(iii) The Administrative Agent shall have received as to each Loan Party (including the Acquired Company and its Designated Subsidiaries) such customary documents and certificates as it shall reasonably have requested relating to the organization, M▇▇▇▇▇▇ & F▇▇▇ LLPexistence and good standing of such Loan Party and the authorization of the Loan Documents or the Transactions, counsel for the Lead Borrower, all in form and substance reasonably satisfactory to the Administrative Agent. The Lead Borrower hereby requests such counsel to deliver such opinion.
(div) The Administrative Agent Acquisition shall have received (i) certified copies been, or shall substantially concurrently with the effectiveness of this Agreement be, consummated in accordance with the terms of the resolutions Acquisition Agreement, without giving effect to any amendment, change or supplement or waiver of any provision thereof (including any change in the purchase price) in any manner that is materially adverse to the interests of the board Lenders or the Arrangers without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of directors the Arrangers (it being understood that any reduction of each Loan Party approving the transactions contemplated by purchase price in respect of the Loan Documents Acquisition will be materially adverse to which it is a party the Lenders and the execution and delivery of such Loan Documents to be delivered by such entity on the Fourth Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Fourth Restatement Effective Date relating to the organization, existence and good standing of each Loan Party and authorization of the transactions contemplated hereby.
(e) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying Arrangers unless (x) such reduction is in the names and true signatures aggregate less than 10% of the officers of each Loan Party authorized purchase price payable pursuant to sign the Loan Documents to which each Loan PartyAcquisition Agreement as in effect on May 18, as applicable, is a party, to be delivered by such entity on the Fourth Restatement Effective Date2015, and (y) there is a concurrent reduction in the other documents required aggregate principal amount of the commitments in respect of the Term Loan Facilities in an amount equal to be delivered pursuant to Section 4.1(d) on the Fourth Restatement Effective Datesuch reduction).
(fv) The Administrative Agent Acquisition Agreement Representations and the Specified Representations shall have received a certificate, dated the Fourth Restatement Effective Date be true and signed correct in all material respects on behalf of the Lead Borrower by a Responsible Officer or a Financial Officer of the Lead Borrower, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2 as of the Fourth Restatement Effective DateDate with the same effect as if made on such date.
(gvi) The Lenders Effective Date Refinancing shall have received (i) audited consolidated financial statements of Holdings for been, or shall concurrently with the three most recent fiscal years ended at least 90 days prior to the Fourth Restatement Effective Date as to which financial statements are available and (ii) unaudited interim consolidated financial statements of Holdings for each quarterly period ended subsequent to the date of the latest financial statements pursuant to clause (i) effectiveness of this paragraph and at least 45 days prior to the Fourth Restatement Effective Date as to which financial statements are available.
Agreement be, consummated or arrangements therefor (h) The items set forth in Section 9.19(a) shall have occurred on or substantially simultaneously with the occurrence of the Fourth Restatement Effective Date and the Former Agent shall have received from the Lead Borrower payment of all fees and out-of-pocket costs and expenses outstanding immediately prior to the Fourth Restatement Effective Date.
(i) The Lenders, the Administrative Agent, and the Arrangers shall have received all fees and expenses required to be paid by the applicable Loan Parties (including, without limitation, the reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent) for which invoices have been presented to the Lead Borrower at least 3 Business Days prior to the Fourth Restatement Effective Date (or such later date as the Lead Borrower shall permit in its reasonable discretion).
(j) The Administrative Agent shall have received, at least three Business Days prior to the Fourth Restatement Effective Date, solely in respect of the Lead Borrower and Holdings, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, to the extent requested by any Lender at least ten Business Days prior to the Fourth Restatement Effective Date.
(k) Subject to the provisions of Section 5.10, the Administrative Agent shall have executed a customary joinder agreement to the Intercreditor Agreement and, in addition, shall have received the following:
(i) UCC financing statements for each Loan Party in each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, including any UCC amendment statements to assign the security interest from M▇▇▇▇▇ S▇▇▇▇▇▇, in its capacity as administrative agent under the Third Amended and Restated Credit Agreement, to the Administrative Agent; and
(ii) to the extent required under the laws of the relevant jurisdiction for perfecting (or achieving the required priority with respect to) a security interest in Equity Interests pledged as Collateral for the Obligations (or any portion thereof), all certificates evidencing such Equity Interests that are issued by any Subsidiary of Holdings and that are pledged to the Administrative Agent pursuant to any Collateral Document together with duly executed in blank, undated stock powers attached thereto.
(l) The Administrative Agent shall have received each of the following with respect to any Existing Mortgage:
(i) An assignment of such Existing Mortgage from the Former Agent to the Administrative Agent's in form and substance reasonably satisfactory to the Administrative Agent; and) shall have been established.
(iivii) All capitalized terms used in this paragraph (vii) have the meanings assigned thereto in the Acquisition Agreement as in effect on May 18, 2015. Since January 31, 2015, there shall not have occurred any Company Material Adverse Effect. For purposes of this paragraph (vii), “Company Material Adverse Effect” means any change, condition, event, effect, occurrence, circumstance or development (each, an “Effect”), individually or in the aggregate, that (A) has, or would reasonably be expected to have, a completed “life material adverse effect on the business, assets, liabilities, financial condition or results of operations of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination Company and the Company Subsidiaries, taken as a whole or (B) prevents the performance in any material respect by the Company of its obligations to consummate the Merger; provided, that for purposes of clause (A), none of the following shall constitute or be deemed to contribute to a Company Material Adverse Effect, or shall otherwise be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur: any adverse Effect arising out of, resulting from or attributable to: (1) changes or proposed changes in applicable Laws, GAAP or the interpretation or enforcement thereof; (2) changes in general economic, business, labor or regulatory conditions, or general changes in securities, credit or other financial markets, including interest rates or exchange rates, in the United States regionally, locally or globally, or changes generally affecting the industries (including seasonal fluctuations to the extent consistent with the Company’s historical results of operations) in which the Company or the Company Subsidiaries operate in the United States or globally; (3) changes in general global, national, regional or local political conditions (including the outbreak or escalation of war (whether or not declared), military action, sabotage or acts of terrorism), changes due to natural disasters or changes in the weather, hurricanes or changes due to the outbreak or worsening of an epidemic, pandemic or other health crisis; (4) actions or omissions required of the Company (x) under the express terms of the Acquisition Agreement or (y) taken or not taken at the request of, or with the consent of, an officer of Parent or any of its affiliates to the extent, in the case of this clause (y), consented to by the Arrangers; (5) any breach, violation or non-performance of any provision of the Acquisition Agreement by the Company or any of its affiliates; (6) the negotiation, announcement, pendency or consummation of the Acquisition Agreement and the transactions contemplated thereby, including the identity of Parent or any of its affiliates or any communication by Parent or any of its affiliates regarding plans, proposals or projections with respect to such Mortgaged Property the Company, the Company Subsidiaries or their employees (including any impact on which the relationship of the Company or any “building” of the Company Subsidiaries, contractual or otherwise, with its customers, suppliers, distributors, vendors, lenders, employees or partners); (as defined 7) any item or matter disclosed in the Flood Insurance LawsCompany SEC Documents filed prior to May 18, 2015; (8) any Proceeding arising from allegations of breach of fiduciary duty or violation of Law relating to the Acquisition Agreement or the transactions contemplated thereby; (9) the outcome of any Proceeding or investigation involving the Company or any Company Subsidiary that has been disclosed in the Company Disclosure Letter; (10) changes in the trading price or trading volume of Company Shares, in and of itself, or any suspension of trading; (11) any item set forth in Schedule 8.4 of the Company Disclosure Letter; (12) the expiration or termination by its terms of any Contract to which the Company or any of the Company Subsidiaries is located, and if such property is in a special flood hazard area, duly executed and acknowledged party; or (13) any failure by the appropriate Loan PartyCompany or any of the Company Subsidiaries to meet any revenue, together with evidence earnings or other financial projections or forecasts, in and of flood insurance as itself; provided, that, (A) in the case of clauses (10) and (13), the underlying cause of such failure may be taken into account in determining whether a Company Material Adverse Effect has occurred (except to the extent required under Section 5.5 hereof. The Administrative Agent shall notify subject to any other foregoing exception), and (B) in the Lead Borrower case of clauses (1), (2) and (3), the impact of such Effect is not or is not reasonably expected to be disproportionately adverse to the Company and the Lenders of Company Subsidiaries, taken as a whole, relative to other participants in their industry (in which case only the Fourth Restatement Effective Date, and such notice shall incrementally disproportionate effect may be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of taken into account in determining compliance with the conditions specified in this Section 4.1, each Lender that whether a Company Material Adverse Effect has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Fourth Restatement Effective Date specifying its objection theretooccurred).
Appears in 1 contract