Second Restatement Effective Date. The amendment and restatement of the First Amended and Restated Agreement in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02): (a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Lender and the Administrative Agent either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Second Restatement Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President, Deputy General Counsel and Assistant Secretary of the Borrower (or any internal or outside counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters relating to the Borrower, this Agreement or the Transactions as the Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion. (c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Borrower in its jurisdiction of organization, the authorization of the Transactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent. (d) The Administrative Agent shall have received a certificate dated the Second Restatement Effective Date signed by a Vice President or a Financial Officer of the Borrower confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05). (e) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement. (f) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Five Year Credit Agreement (Hp Inc)
Second Restatement Effective Date. The amendment and restatement amendments set forth herein shall be effective as of the First Amended and Restated Agreement in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, shall become effective on the date on which each of the following conditions is shall have been satisfied (or waived in accordance with Section 9.0210.5 of the Existing Credit Agreement):
(a) The Administrative Agent Company (or its counselpredecessors-in-interest) shall have received from made a Voluntary Prepayment on or prior to the Borrower, each Lender Second Restatement Effective Date (and the Administrative Agent either (iacknowledges that such Voluntary Prepayment was made on October 21, 2009) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to be applied to the Administrative Agent that such party has signed Tranche C Term Loans on a counterpart of this Agreementpro rata basis in an aggregate amount not less than $10,000,000.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a favorable written opinion complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(addressed d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and the Lenders and dated its counsel invoiced to Company on or before the Second Restatement Effective DateDate and reimbursable by Company under the terms of the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of ▇▇▇▇▇ ▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Vice PresidentP.A., Deputy General Counsel and Assistant Secretary of the Borrower (or any internal or outside counsel designated by the Borrower)for Credit Parties, substantially in the form of Exhibit BD-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and covering as to such other matters relating to the Borrower, this Agreement or the Transactions as the Lenders shall Administrative Agent may reasonably request. The Borrower , dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby requests instructs such counsel to deliver such opinionopinions to Agents and Lenders).
(cj) The Administrative Agent shall have received such documents and certificates as evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(k) The Administrative Agent may reasonably request relating to the organization, existence and good standing shall have received a copy of the Borrower in its jurisdiction of organizationresolutions, the authorization of the Transactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder.
(dl) The Administrative Agent shall have received a certificate dated copy of the Second Restatement Effective Date signed by a Vice President resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a Financial Officer duly authorized committee thereof) authorizing the execution, delivery and performance of the Borrower confirming compliance with Pledge Agreement (and any other amendments or agreements relating to the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05Pledge Agreement to which it is a party).
(e) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement.
(fm) The Administrative Agent shall have received all documentation true and other information required complete copies of the certificate of incorporation and by bank regulatory authorities under applicable “know your customer” laws (or equivalent organizational documents) of (A) Company and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders (B) Telvent as of the Second Restatement Effective Date; provided that, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement in lieu of the First Amended and Restated Credit Agreement in the form hereof and obligations delivery of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 9.023.1 of the Initial Credit Agreement.
(n) at or prior On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to 5:00 p.m.Administrative Agent and the Lenders and in form, New York City timescope and substance satisfactory to Administrative Agent, on April 30, 2018 (and, in and demonstrating that after giving effect to the event such conditions are not so satisfied or waivedtransactions contemplated by this Agreement, the Commitments Company is and will be Solvent.
(o) Company shall terminate at such time)have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The All-Lender Amendments and the amendment and restatement of the First Amended and Restated Guarantee Agreement as set forth in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, Section 3 hereof shall become be effective on the date on which each of so elected by the Borrower (the “Second Restatement Effective Date”); provided that the following conditions is shall have been satisfied (or waived in accordance with Section 9.02):as of such date:
(a) The First Restatement Effective Date shall have occurred;
(b) The Administrative Agent (or its counsel) shall have received from the Borrower, Borrower and each Lender and as of the Administrative Agent Second Restatement Effective Date (unless previously delivered pursuant to Section 5(a) above) either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.;
(bc) The Administrative Agent shall have received a favorable certificate dated the Second Restatement Effective Date and signed by a Financial Officer of the Borrower stating that (i) each of the representations and warranties of the Loan Parties contained herein and in the Amended Credit Agreement are true and correct (x) in the case of representations and warranties qualified as to materiality, in all respects and (y) otherwise, in all material respects, in each case, as of the Second Restatement Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (I) in the case of the representations and warranties qualified as to materiality, in all respects and (II) otherwise, in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing at the time of the Second Restatement Effective Date or immediately after giving effect thereto;
(d) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent Agent, the Issuing Banks and the Lenders and dated the Second Restatement Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President, Deputy General Counsel and Assistant Secretary of special counsel for the Successor Borrower (or any internal or outside counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters as the Administrative Agent shall reasonably request relating to the Borrower, Successor Borrower and this Agreement or and in form and substance reasonably satisfactory to the Transactions as the Lenders shall reasonably requestAdministrative Agent. The Successor Borrower hereby requests such counsel to deliver such opinion.;
(ce) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower in its jurisdiction of organizationSuccessor Borrower, the authorization of the Transactions this Agreement and any other legal matters relating to the Successor Borrower, the Subsidiaries, this Agreement or the Transactionstransactions contemplated herein, all in form and substance reasonably satisfactory to the Administrative Agent.Agent and its counsel;
(df) The Guarantee Requirement (as such term is defined in the Amended Credit Agreement) shall have been satisfied;
(g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Second Restatement Effective Date, including to the extent invoiced at least two Business Days prior to the Second Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Loan Parties under Section 9 hereof or the Amended Credit Agreement (and not previously reimbursed pursuant to Section 5(b) above); and
(h) The Administrative Agent shall have received a certificate dated notice from the Borrower electing for the Second Restatement Effective Date signed by a Vice President or a Financial Officer to occur, which notice shall specify the date of the Borrower confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05).
(e) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to (which shall be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer no earlier than two three Business Days prior to) after the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness delivery of this Agreement.
(f) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timenotice).
Appears in 1 contract
Second Restatement Effective Date. The amendment and restatement obligations of the First Amended Lenders to make Term Loans on the Second Restatement Effective Date and Restated Agreement in the form hereofeffectiveness of the Revolving Commitments, and the obligations of the Revolving Lenders to make Revolving Loans and acquire participations thereunder, in Swingline Loans pursuant heretoeach case, shall become effective on the date on which Second Restatement Effective Date, in each case, are subject to each of the following conditions is satisfied (or waived in accordance with Section 9.02):being satisfied:
(a) The Administrative Agent (or its counsel) shall have received from this Agreement signed on behalf of (i) the Parent, (ii) the Borrower, (iii) each Lender (including each Issuing Bank) and (iv) the Administrative Agent;
(b) The Administrative Agent either (or its counsel) shall have received the Guarantee and Collateral Agreement, executed and delivered by (i) a counterpart duly authorized officer of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or the Parent, the Borrower and each Guarantor and (ii) written evidence satisfactory to the Administrative Agent that such party has signed a counterpart of this Agreement.Agent;
(bc) The Administrative Agent shall have received a favorable written opinion (addressed to Borrowing Request for the Administrative Agent Term Loans and the Lenders and dated Revolving Loans (if any) to be made on the Second Restatement Effective Date at least three Business Days prior to the Second Restatement Effective Date;
(d) The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Second Restatement Effective Date, except where any representation and warranty is expressly made as of a specific earlier date, such representation and warranty shall be true in all material respects as of any such earlier date;
(e) After giving effect to the incurrence of the Term Loans on the Second Restatement Effective Date and the effectiveness of the Revolving Commitments and the incurrence of the Revolving Loans thereunder, in each case, on the Second Restatement Effective Date, no Default or Event of Default shall have occurred and be continuing;
(f) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, Vice President, Deputy General Counsel and Assistant Secretary of the Borrower (or any internal or outside counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters relating to the BorrowerLoan Parties, this Agreement or in form reasonably satisfactory to the Transactions as the Lenders shall reasonably requestAdministrative Agent. The Borrower hereby requests such counsel to deliver such legal opinion.;
(cg) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Restatement Effective Date, substantially in the form of Exhibit E, with appropriate insertions and attachments including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such documents Loan Party, and certificates as the Administrative Agent may reasonably request relating to the organization, existence and (ii) a long form good standing of the Borrower in certificate and bringdown good standings for each Loan Party from its jurisdiction of organization, the authorization of the Transactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent.;
(dh) The Administrative Agent shall have received a certificate dated attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole on a consolidated basis) on the Second Restatement Effective Date signed by a Vice President or after giving effect to the incurrence of Term Loans and Revolving Loans from a Financial Officer of the Borrower confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05).Borrower;
(ei) Accrued interest on The Administrative Agent (i) shall have received, at least five days prior to the Second Restatement Effective Date, all loans outstanding under documentation and other information regarding the First Amended Borrower requested in connection with applicable “know your customer” and Restated Credit Agreement Anti-Money Laundering Laws, including the Act, to the extent reasonably requested in writing of the Borrower at least ten days prior to the Second Restatement Effective Date and all fees(ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, cost reimbursements at least five days prior to the Second Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten days prior to the Second Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and out-of-pocket expenses accrued delivery by such Lender of its signature page to or required this Agreement, the condition set forth in this clause (ii) shall be deemed to be paid or reimbursed satisfied);
(j) The Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Restatement Effective Date pursuant hereto Date, including reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder;
(including under k) The Borrower shall have (i) repaid (or caused to be repaid) all Existing Revolving Loans (if any) and (ii) paid to all Lenders (A) holding Existing Revolving Loans all accrued and unpaid interest on their Existing Revolving Loans (if any) and (B) all accrued and unpaid commitment fees contemplated by the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the each case of cost reimbursement and out-of-pocket expensesto, but not fewer than two Business Days prior to) including, the Second Restatement Effective Date, ;
(l) All Existing Term Loans outstanding under the Amended and Restated Credit Agreement shall have been paid (i) repaid in full or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement.(ii) converted into Term Loans hereunder (and in any event, all accrued interest thereon shall have been paid);
(fm) The Administrative Agent shall have received from the Borrower, for the account of each Lender holding Existing Revolving Commitments with respect to its participations in Letters of Credit, all documentation accrued and other information unpaid participation fees required by bank regulatory authorities under applicable “know your customer” the Amended and anti-money laundering rules and regulationsRestated Credit Agreement, including the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of in each case to, but not including, the Second Restatement Effective Date;
(n) [reserved];
(o) The Administrative Agent shall have received Notes executed by the Borrower in favor of each Lender requesting Notes at least three Business Days prior to the Second Restatement Effective Date;
(p) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(q) The Borrower shall have paid (or caused to be paid) to the Administrative Agent for the account of each Revolving Lender all upfront, consent or similar fees separately agreed by the Borrower to be paid in connection with this Agreement;
(r) The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions in which Uniform Commercial Code financing statement or other filings or recordations should be made to evidence or perfect security interests in all assets of the Loan Parties, and such notice search shall reveal no liens on any of the assets of the Loan Party, except for Liens permitted by Section 6.02;
(s) Except as otherwise permitted under Section 5.09, the Administrative Agent shall have received (i) to the extent not previously delivered, the certificates representing the shares of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, (ii) an Acknowledgment and Consent, substantially in the form of Annex II to the Guarantee and Collateral Agreement, duly executed by any issuer of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement that is not itself a party to the Guarantee and Collateral Agreement and (iii) to the extent not previously delivered, each promissory note pledged pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to the Administrative Agent) by the pledgor thereof;
(t) Except as otherwise permitted under Section 5.09, each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be conclusive filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and binding. superior in right to any other Person (other than with respect to Liens permitted by Section 6.02), shall have been filed, registered or recorded or shall have been delivered to the Administrative Agent and be in proper form for filing, registration or recordation;
(u) If and to the extent required thereunder, the Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.3 of the Guarantee and Collateral Agreement; and
(v) Notwithstanding the foregoing, it is understood and agreed that the amendment conditions in the foregoing clauses (j), (k), (l), (m), and restatement (q) will be deemed to be satisfied if the payments required under such clauses will be funded in full, together with other amounts, with the proceeds of the First Amended and Restated Credit Agreement in initial extensions of credit hereunder on the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time)Second Restatement Effective Date.
Appears in 1 contract
Second Restatement Effective Date. The amendment and restatement of the First Amended and Restated This Agreement in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, shall not become effective on until the date on which each of the following conditions is precedent have been satisfied (or waived in accordance with Section 9.02):by the Administrative Agent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Lender and the Administrative Agent party hereto either (i) a counterpart of this Agreement and all other Loan Documents (which may include telecopy or electronic transmission of a signed signature page of this Agreementincluding, without limitation, the Notes and the Security Documents) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgreement and all other Loan Documents.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative each Agent and the Lenders on the Second Restatement Effective Date and dated the Second Restatement Effective Date) of McGuireWoods LLP, counsel for the Domestic Borrowers substantially in the form of Exhibit C-1, and Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Vice President, Deputy General Counsel and Assistant Secretary of counsel for the Borrower (or any internal or outside counsel designated by the Canadian Borrower), substantially in the form of Exhibit BC-2, and covering such matters relating to the BorrowerLoan Parties, this Agreement the Loan Documents or the Transactions transactions contemplated thereby as the Required Lenders shall reasonably request. The Borrower Borrowers hereby requests request such counsel to deliver such opinionopinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower in its jurisdiction of organizationeach Loan Party, the authorization of the Transactions transactions contemplated by the Loan Documents and any other legal matters relating to the BorrowerLoan Parties, the Subsidiaries, this Agreement Loan Documents or the Transactionstransactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel.
(d) The Administrative Agent shall have received a certificate dated certificate, reasonably satisfactory in form and substance to the Second Restatement Effective Date signed by Administrative Agent, (i) with respect to the solvency of (A) the Lead Borrower and its Subsidiaries on a Vice President or a Financial Officer of the Borrower confirming compliance with the conditions set forth in paragraphs (a) consolidated basis, and (bB) of Section 4.02 each Loan Party, individually, as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05).
(e) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will be paid on and (ii) certifying that, as of the Second Restatement Effective Date substantially concurrently Date, the representations and warranties made by the Loan Parties in the Loan Documents are true and complete in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the effectiveness giving of this Agreementnotice or passage of time (or both) would be a Default or an Event of Default.
(e) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received all documentation (i) an appraisal, in form and substance satisfactory to the Administrative Agent, performed by an appraiser acceptable to the Administrative Agent of the Inventory of the Borrowers, and (ii) a commercial finance examination in form and substance satisfactory to the Administrative Agent relating to inspections, audits and field searches (which may include conversations with responsible officers and employees) of each Borrower’s assets (including, without limitation, accounts receivable and inventory), liabilities, books and records, management information systems, cash management, vendor agreements and other information material agreements.
(g) The Administrative Agent shall have received pro forma consolidated financial statements as to the Lead Borrower and its Subsidiaries, and forecasts prepared by management of the Lead Borrower, each in form satisfactory to the Administrative Agent, consisting of (i) balance sheets, income statements, and cash flow statements (including a calculation of Excess Availability) on a monthly basis for fiscal year 2008, and (ii) balance sheets, income statements, and cash flow statements (including a calculation of Excess Availability) on an annual basis for each of fiscal years 2009, 2010, and 2011.
(h) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to them fairly present the business and financial condition of the Lead Borrower and its Subsidiaries, and that there has been no material adverse change in the assets, business, financial condition, income, or prospects of the Lead Borrower and its Subsidiaries since the date of the most recent financial statements delivered to the Administrative Agent.
(i) The Administrative Agent shall have received a Borrowing Base Certificate as of December 31, 2007, and shall be satisfied that Second Restatement Date Availability was not less than $700,000,000.
(j) There shall not have occurred any default, nor shall any event exist which is, or solely with the passage of time, the giving of notice or both, would be a default under any Material Indebtedness of any Loan Party.
(k) The Collateral Agent and the Canadian Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable (in each case dated as of a date reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable) indicating the absence of Liens on the Borrowers’ Inventory and proceeds thereof, including without limitation, receivables from credit card processors, except for Liens for which termination statements and releases reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable, are being tendered concurrently with such extension of credit.
(l) The Collateral Agent and the Canadian Agent shall have received all documents and instruments, including Uniform Commercial Code and PPSA financing statements and certified statements issued by the Québec Register of Personal and Movable Real Rights, required by bank regulatory authorities law or reasonably requested by the Collateral Agent and the Canadian Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under applicable “know your customer” the Loan Documents and anti-money laundering rules all such documents and regulationsinstruments shall have been so filed, registered, published or recorded to the satisfaction of the Collateral Agent and the Canadian Agent.
(m) The Collateral Agent and the Canadian Agent, as applicable, shall have received the DDA Notifications, the Blocked Account Agreements and Credit Card Notifications required to be delivered hereunder on or before the Second Restatement Effective Date.
(n) All fees due at or immediately after the Second Restatement Effective Date and all reasonable costs and expenses incurred by the Administrative Agent and the Canadian Agent in connection with the establishment of the credit facility contemplated hereby (including the Patriot Actreasonable fees and expenses of counsel to the Administrative Agent and the Canadian Agent) shall have been paid in full.
(o) The consummation of the transactions contemplated hereby shall not (a) violate any Applicable Law, or (b) conflict with, or result in a default or event of default under, any material agreement of any Loan Party.
(p) No material changes in governmental regulations or policies affecting the Loan Parties, the Agents, the Arranger or any Lender involved in this transaction shall have occurred prior to the Second Restatement Effective Date which could, individually or in the aggregate, materially adversely effect the transaction contemplated by this Agreement.
(q) There shall be no Default or Event of Default on the Second Restatement Effective Date.
(r) The Collateral Agent and, in respect of the Canadian Borrower and its Subsidiaries, the Canadian Agent, shall have received, and be satisfied with, evidence of the Borrowers’ insurance, together with such endorsements as are required by the Loan Documents.
(s) There shall have been delivered to the Administrative Agent and/or the Canadian Agent such additional instruments and documents as the Administrative Agent or its counsel reasonably may require or request. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Second Restatement Effective Date. The amendment and restatement of the First Amended and Restated Agreement in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, of the Issuing Bank to issue Letters of Credit hereunder shall not become effective on until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.029.2):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Lender and the Administrative Agent either (i) party hereto a counterpart of this Agreement signed on behalf of such party (which may include telecopy facsimile or other electronic transmission of a signed signature page of this Agreement).
(b) The Administrative Agent shall have received a Note executed by the Borrower (which may include facsimile or other electronic transmission of a signed on behalf signature page of such party or (ii) written evidence Note, provided that arrangements reasonably satisfactory to the Administrative Agent that have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Second Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on the Second Restatement Effective Date if on such party date it has signed not returned to the Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Borrower), if any, issued to such Lender as a counterpart of this lender under the Amended and Restated Credit Agreement.
(bc) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Second Restatement Effective Date) of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Vice President, Deputy General Counsel counsel for Holdings and Assistant Secretary of the Borrower (or any internal or outside counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters relating substance reasonably satisfactory to the Borrower, this Agreement or the Transactions as the Lenders shall reasonably requestAdministrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(cd) Borrower and Holdings shall have duly authorized, executed and delivered a Reaffirmation Agreement.
(e) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each of Holdings and the Borrower 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 Second Restatement Effective Date and (ii) all other documents and certificates as reasonably requested by the Administrative Agent may reasonably request at least five days prior to the Second Restatement Effective Date relating to the organization, existence and good standing of Holdings and the Borrower in its jurisdiction of organization, the and authorization of the Transactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agenttransactions contemplated hereby.
(df) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each of Holdings and the Borrower certifying the names and true signatures of the officers of Holdings and the Borrower authorized to sign the Loan Documents to which it is a party, to be delivered by such entity on the Second Restatement Effective Date, and the other documents required to be delivered pursuant to Section 4.1(e) on the Second Restatement Effective Date.
(g) The Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date and signed on behalf of the Borrower by a Vice President Responsible Officer or a Financial Officer of the Borrower Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 4.2 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05)Second Restatement Effective Date.
(eh) Accrued interest on all loans outstanding under The Administrative Agent shall have received true and correct copies of the First Amended financial statements referred to in Section 3.4(a), which financial statements shall be in form and Restated Credit Agreement substance reasonably satisfactory to the Administrative Agent. The Administrative Agent hereby acknowledges that it has received such financial statements prior to the Second Restatement Effective Date and such financial statements are satisfactory to it in form and substance.
(i) On the Second Restatement Effective Date, (x) all then outstanding loans under the Amended and Restated Credit Agreement shall have been repaid in full, together with all accrued and unpaid interest and fees (including Commitment Fees (under and as defined in the Amended and Restated Credit Agreement), letter of credit fees and facing fees) and other amounts owing thereunder (except to the extent being so repaid with the initial borrowing of Revolving Loans and except to the extent letters of credit thereunder are converted to Letters of Credit hereunder in accordance with Section 2.5(l)), cost reimbursements whether or not such interest, fees or other amounts are actually due and payable at such time pursuant to the Amended and Restated Credit Agreement and (y) Borrower shall have paid in cash to the Administrative Agent and the Arrangers all reasonable and documented out-of-pocket fees and expenses accrued (including, without limitation, the reasonable and documented fees, disbursements and other charges of White & Case LLP, counsel to or required the Administrative Agent) incurred in connection with the arrangement, negotiation and consummation of the Transactions and the preparation and execution of the documents evidencing the Transactions, in each case to be paid or reimbursed on or the extent invoiced prior to the Second Restatement Effective Date pursuant hereto Date.
(including under the First Amended and Restated Credit Agreementj) or pursuant to the Commitment Letter (including upfront fees)The Administrative Agent shall have received, to the extent invoiced prior to (or, in reasonably requested by any of the case of cost reimbursement and out-of-pocket expenses, not fewer than two Lenders at least five Business Days prior to) to the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement.
(f) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the USA Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding Without limiting the foregoing, the amendment and restatement generality of the First Amended and Restated Credit 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 in 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 form hereof and obligations of the Lenders to make Loans hereunder Administrative Agent shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or have received notice from such Lender prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time)proposed Second Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Second Restatement Effective Date. The amendment and restatement of the First Amended and Restated Existing Credit Agreement in the form hereof, pursuant hereto and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, of the Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the date on which each of the following conditions is shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Lender and the Administrative Agent party hereto either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks and dated the Second Restatement Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Vice Presidentcounsel for the Company, Deputy General Counsel in form and Assistant Secretary of the Borrower (or any internal or outside counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters relating substance reasonably satisfactory to the Borrower, this Agreement or the Transactions as the Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinionAdministrative Agent.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Borrower in its jurisdiction of organizationeach Loan Party, the authorization of the Transactions and any other legal matters relating to the BorrowerLoan Parties, the Subsidiaries, this Agreement Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a certificate certificate, dated the Second Restatement Effective Date and signed by a Vice President the chief executive officer or a Financial Officer the chief financial officer of the Borrower Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05)4.02.
(e) Accrued interest on The Administrative Agent shall have received all loans outstanding under the First Amended fees and Restated Credit Agreement to the Second Restatement Effective Date other amounts due and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed payable on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees)Date, including, to the extent invoiced prior invoiced, payment or reimbursement of all fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Engagement Letter or any Loan Document (including the Existing Credit Agreement).
(f) The Collateral and Guarantee Requirement shall have been satisfied. The Administrative Agent shall have received a completed Perfection Certificate, dated the Second Restatement Effective Date and signed by an executive officer or a Financial Officer of the Company, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Domestic Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 or have been, or substantially contemporaneously with the initial funding of Loans on the Second Restatement Effective Date will be, released. Each Subsidiary Loan Party shall have entered into a reaffirmation agreement pursuant to which such Subsidiary Loan Party reaffirms its obligations under the Collateral Agreement and the other Security Documents, including with respect to the Obligations hereunder, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Lenders shall have received the financial statements, opinions and certificates referred to in Section 3.04.
(h) The principal of and accrued and unpaid interest on all outstanding loans and letter of credit disbursements under the Existing Credit Agreement, and all accrued and unpaid fees and cost reimbursements payable under the Existing Credit Agreement (including all amounts owed in respect of such prepayments pursuant to Section 2.16 of the Existing Credit Agreement), shall have been (or, in substantially simultaneously with the case effectiveness of cost reimbursement this Agreement and out-of-pocket expenses, not fewer than two Business Days prior to) the making of Loans hereunder on the Second Restatement Effective Date, shall be) paid in full, and the Administrative Agent shall have been paid received evidence reasonably satisfactory to it of such payment. Immediately after giving effect to the Transactions, neither the Company nor any Subsidiary shall have outstanding any shares of preferred stock or will be paid other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.01 and (iii) preferred Equity Interests in Foreign Subsidiaries issued in compliance with Section 6.01(b) hereof to other Foreign Subsidiaries.
(i) The Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date substantially concurrently with and signed by the effectiveness chief financial officer of this Agreementthe Company, as to the solvency of the Loan Parties as of the Second Restatement Effective Date on a consolidated basis after giving effect to the Transactions, in form and substance reasonably satisfactory to the Administrative Agent.
(fj) The Administrative Agent Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “"know your customer” " and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act.
(k) The Administrative Agent shall have received evidence that the insurance required by Section 5.08 is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.08. The Administrative Agent shall notify the Borrower Company and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in the form hereof and obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is shall have been satisfied (or waived pursuant to in accordance with Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30December 10, 2018 2015 (and, in the event such conditions are shall not have been so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Second Restatement Effective Date. The amendment and restatement effectiveness of the First this Second Amended and Restated Credit Agreement in the form hereof, and the obligations obligation of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, shall become effective or continue their Credit Extension on the date on which each Second Restatement Effective Date is subject to satisfaction (or waiver) of the following conditions is satisfied (precedent on or waived in accordance with Section 9.02):before the Second Restatement Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from Agent’s receipt of the Borrowerfollowing, each Lender of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Second Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Restatement Effective Date) and the Administrative Agent either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence each in form and substance reasonably satisfactory to the Administrative Agent that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders signatory hereto:
(i) executed counterparts of this Agreement and dated the Second Restatement Effective DateReaffirmation And Assumption Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, provided that each such Lender has returned its Note received pursuant to the Restated Credit Agreement, if any, as required by Section 2.12;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., outside counsel to the Borrower, and (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President, Deputy General Counsel of the Borrower, in each case addressed to the Administrative Agent and Assistant Secretary each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or any internal circumstance since December 31, 2008 that has had or outside counsel designated could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Certificate as of February 28, 2009;
(ix) a duly completed Compliance Certificate as of December 31, 2008, signed by a Responsible Officer of the Borrower), substantially in the form of Exhibit B, and covering such matters relating ;
(x) evidence that all insurance required to be maintained pursuant to the BorrowerLoan Documents has been obtained and is in effect;
(xi) evidence that, subject to the initial Borrowing hereunder, the excess (if any) of the First Restatement Lenders’ First Restatement Loans made under the Restated Credit Agreement which shall not remain outstanding on and after the Second Restatement Effective Date as Loans under this Agreement shall have been repaid in full;
(xii) evidence that all of the Aggregate Commitments shall have been obtained and are in effect; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Transactions as Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Lenders Second Restatement Effective Date shall reasonably request. The Borrower hereby requests such counsel to deliver such opinionhave been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Second Restatement Effective Date.
(d) All governmental and third party approvals (including landlords’ and other consents) necessary in connection with the continuing operations of the Loan Parties and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(e) The Administrative Agent shall have received the results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices in which UCC financing statements or other filings or recordations should be made to evidence or perfect (with the priority required under the Loan Documents) security interests in the Collateral, and such documents search shall be reasonably satisfactory to the Lenders signatory hereto.
(f) Each document (including, without limitation, any UCC financing statement) required by the Guarantee and certificates as Collateral Agreement or under law or reasonably requested by the Administrative Agent may reasonably request relating to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Permitted Liens), shall have been filed, registered or recorded or shall have been delivered to the organizationAdministrative Agent in proper form for filing, existence registration or recordation.
(g) There shall be no litigation, public or private, or administrative proceedings, governmental investigation or other legal or regulatory developments, actual or threatened, that, singly or in the aggregate, would reasonably be expected to result in a Material Adverse Effect on the Borrower and good standing its Subsidiaries, taken as a whole, or would materially and adversely affect the ability of the Borrower in and its jurisdiction of organizationSubsidiaries to fully and timely perform their respective obligations under the Loan Documents, or the authorization rights and remedies of the Transactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement Administrative Agent or the TransactionsLenders under the Loan Documents.
(h) The Administrative Agent and the Lenders signatory hereto shall have received, all in form and substance reasonably satisfactory to them (i) all financial information required to be delivered pursuant to Section 6.01 of the Administrative Agent.
Restated Credit Agreement, (dii) The annual projections of the Borrower and its Subsidiaries for the fiscal years ending December 31, 2009 and December 31, 2010, (iii) quarterly projections of the Borrower and its Subsidiaries for eight consecutive quarters commencing with the fiscal quarter ending March 31, 2009 and (iv) the Audited Financial Statements. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received a certificate dated written notice from such Lender prior to the proposed Second Restatement Effective Date signed by a Vice President or a Financial Officer of the Borrower confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05)specifying its objection thereto.
(e) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement.
(f) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Holly Corp)
Second Restatement Effective Date. The effectiveness of the amendment and restatement of the First Amended Restated Credit Agreement and Restated Agreement in the form hereof, and of the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, of the Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each Lender and the Administrative Agent party hereto either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or Adobe .pdf transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Second Restatement Effective Date) of ▇each of (i)(A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Vice President, Deputy General Counsel and Assistant Secretary of the Borrower (or any internal or outside United States counsel designated by the Borrower), substantially in the form of Exhibit B, and covering such matters relating to for the Borrower, this Agreement and (B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of Intermediate Holdings, (ii) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Borrower and (iii) local counsel for Intermediate Holdings and the Borrower in each jurisdiction in which any Subsidiary Loan Party is organized or where any Mortgaged Property is located, in each case in form and substance reasonably satisfactory to the Transactions as Administrative Agent, provided that, if Intermediate Holdings, the Lenders shall reasonably requestBorrower and the Subsidiary Loan Parties do not, on or prior to the Second Restatement Effective Date, deliver a favorable written opinion of local counsel from any jurisdiction other than the United States of America (including any State thereof and the District of Columbia) and the Cayman Islands, then such requirement may be satisfied after the Second Restatement Effective Date in accordance with Section 5.13(a). The Each of Intermediate Holdings and the Borrower hereby requests such counsel to deliver such opinionopinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organizationorganization or incorporation, existence and good standing of the Borrower in its jurisdiction of organizationeach Loan Party, the authorization of the Transactions execution, delivery and performance of the Loan Documents by each Loan Party and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement each Loan Party or the TransactionsLoan Documents, all in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel, provided that, if Intermediate Holdings, the Borrower and the Subsidiary Loan Parties do not, on or prior to the Second Restatement Effective Date, deliver any documents or certificates in respect of any Subsidiary Loan Party organized under the laws of any jurisdiction other than the United States of America (including any State thereof and the District of Columbia) and the Cayman Islands, then such requirement may be satisfied after the Second Restatement Effective Date in accordance with Section 5.13(a).
(d) The Administrative Agent shall have received a certificate certificate, dated the Second Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05)4.02.
(e) Accrued interest on all loans outstanding under The Collateral and Guarantee Requirement shall have been satisfied and the First Amended and Restated Credit Agreement to Administrative Agent shall have received a completed Perfection Certificate dated the Second Restatement Effective Date and signed by an executive officer or a Financial Officer of the Borrower, together with all feesattachments contemplated thereby, cost reimbursements and out-of-pocket expenses accrued including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to or required the Loan Parties in the jurisdictions contemplated by the Perfection Certificate (but, with respect to the Loan Parties in any jurisdiction, only to the extent determined by the Administrative Agent, in its reasonable discretion, to be paid reasonable and customary in such jurisdiction) and copies of the financing statements (or reimbursed similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or simultaneously are being released, provided that, if Intermediate Holdings, the Borrower and the Subsidiary Loan Parties do not, on or prior to the Second Restatement Effective Date pursuant hereto Date, (i) deliver (or take any actions to perfect the security interest to be created under) any Foreign Guarantee or any Security Document required to satisfy the Collateral and Guarantee Requirement and that would be prepared under and governed by the law of any jurisdiction other than the United States of America (including under any State thereof and the First Amended District of Columbia) and Restated Credit Agreementthe Cayman Islands, (ii) deliver with respect to any Mortgaged Property a survey or pursuant a survey affidavit of no change or (iii) complete any lien search contemplated by this paragraph in respect of assets located in any such jurisdiction referred to in the Commitment Letter immediately preceding clause (including upfront feesi), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will such requirements may be paid on satisfied after the Second Restatement Effective Date substantially concurrently in accordance with the effectiveness of this AgreementSection 5.13(a).
(f) The Administrative Agent shall have received the Amendment Fees and all documentation other fees and other information required by bank regulatory authorities under applicable “know your customer” amounts (i) in respect of the First Restated Credit Agreement (including all accrued and anti-money laundering rules unpaid fees set forth in Section 2.11 of the First Restated Credit Agreement) and regulations(ii) due and payable on or prior to the Second Restatement Effective Date, including in each case, to the Patriot Actextent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by Intermediate Holdings or the Borrower under any Loan Document.
(g) Immediately after giving effect to the reduction in the Commitments to become effective as of the Second Restatement Effective Date (as contemplated by the definition of the term “Commitments”), (i) the aggregate Revolving Exposure shall not exceed $350,000,000 and (ii) the aggregate LC Exposure shall not exceed $75,000,000. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the effectiveness of the amendment and restatement of the First Amended and Restated Credit Agreement in and of the form hereof and obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30May 3, 2018 2009 (and, in the event such conditions are not so satisfied or waived, the Commitments hereunder shall terminate at such time).
Appears in 1 contract