Effectiveness; Conditions Precedent. This Agreement shall become effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”): (a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto. (b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents. (c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated. (d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent. (e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent. (f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G. (g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent. (h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date. (i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders). (j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person. (k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date. (l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2. (m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. This Agreement The amendments herein provided shall become be effective on upon the first date on which each satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received each of the Amended following documents or instruments in form and Restated Controlsubstance acceptable to the Administrative Agent:
(i) one or more counterparts of this Amendment, Operations duly executed by the Borrower and Maintenance Agreement, each Guarantor;
(ii) a certificate of each Loan Party dated as of the Eighth Amendment Effective Date, executed date hereof signed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as Responsible Officer of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
such Loan Party (i) As of certifying and attaching the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule resolutions adopted by such Loan Party approving or consenting to the Administrative AgentIncrease, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date Borrower, certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereofthat, (ii) before and after giving effect to the waivers set forth in the Waiver and the amendments set forth increases provided herein, (A) the representations and warranties of each contained in Article V of the Credit Agreement and the other Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Increase Effective Date (unless stated Date, except to relate solely the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties were they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement and (B) no Default exists;
(iii) fully-executed copies of the Merger Agreement, the Subordinated Seller Notes executed in connection with the NSS Merger and the other documents and agreements entered into in connection with the NSS Merger;
(iv) consolidated opening balance sheet of the Borrower and its Subsidiaries after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.NSS Merger;
(lv) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each quarterly financial forecasts of the Borrower and its Subsidiaries, on a consolidated and consolidating basis, prepared by management of the Administrative AgentBorrower including balance sheets and related statements of income or operations, shareholders’ equity and cash flows for each fiscal quarter ending in 2009 and 2010, in each case certified by the chief financial officer of the Borrower;
(vi) a certificate of a Responsible Officer of each Loan Party either (i) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the NSS Merger and 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 form full force and substance reasonably effect, or (ii) stating that no such consents, licenses or approvals are so required;
(vii) evidence satisfactory to the Administrative Agent, that contemporaneously with and immediately upon the effectiveness of this Amendment, the NSS Merger will have been consummated in accordance with the terms of the NSS Merger Agreement
(viii) a certificate of a Responsible Officer of the Borrower attaching copies of all consents, licenses and approvals required in connection with the consummation by NSS and its Subsidiaries of the NSS Merger, which such consents, licenses and approvals shall be in full force and effect;
(ix) completed requests for information, dated on or before the date hereof, listing all effective financing statements filed in the jurisdictions satisfactory to the Administrative Agent that name NSS or any of its Subsidiaries as debtor, together with copies of such other financing statements
(x) evidence satisfactory to the Administrative Agent, that any Indebtedness (other than Indebtedness permitted by Section 7.03 of the Credit Agreement) of NSS and its Subsidiaries has been or concurrently with the date hereof is being terminated and all Liens securing such Indebtedness have been or concurrently with the date hereof are being released; and
(xi) such other documents, instruments, opinions, certifications, undertakings, further assurances and other matters as the Administrative Agent shall reasonably request.
(b) All upfront fees due to the Lenders, together with all other fees and expenses payable to the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent) estimated to date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Ats Corp)
Effectiveness; Conditions Precedent. This Agreement shall become effective on the first date on which each (a) The effectiveness of this Amendment is subject to the following conditions have been satisfied or waived (such dateprecedent, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agentincluding, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent where applicable, that Lender shall have received counterparts to each which, when taken together, bear the signatures of each of the following documents and other parties hereto.
items (b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable such documents and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall other items must be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.Lender):
(i) As of the Eighth This Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).executed by Borrower;
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct The Sureties' Acknowledgment and complete copy of resolutions duly adopted Mortgage Modification Agreement executed by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; Surety;
(iii) that the certificate The Amended and Restated Promissory Note executed by Borrower together with a Disclosure of incorporation, certificate Confession of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; Judgment executed by Borrower;
(iv) as to Copies of the incumbency and specimen signature Junior Creditor Documents certified by an officer of each officerBorrower, member or partner (as applicable) which Junior Creditor Documents shall provide for a committed term loan facility of such Person executing the Financing Documents to which such Person is or is intended not less $4,750,000 to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and funded at closing;
(v) as to The Subordination and Intercreditor Agreement (the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business "Baena Subordination Agreement") executed by Junior Creditor and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.ackn▇▇▇▇▇ged by Borrower;
(kvi) The Borrower has delivered Any and all agreements, instruments and documents required by Lender to effectuate and implement the Administrative Agent an Officer’s Certificate of each of terms this Amendment (duly executed, where appropriate, by Borrower and Holdings dated such other parties, as applicable);
(vii) Evidence that the execution, delivery and performance of this Amendment and the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth other agreements, instruments and documents referred to in this Section 4 by Borrower have been satisfied duly authorized by all necessary corporate action, together with certified copies of the organizational documents of, and good standing/foreign qualification certificates for, Borrower;
(viii) No litigation, investigation or proceeding before or by any Governmental Authority shall be continuing or threatened in accordance connection with this Amendment or the Junior Creditor Documents or any of the transactions contemplated hereby or thereby, and no injunction, writ, restraining order or other order of any nature inconsistent with the terms hereof, due consummation of such transactions shall have been issued by any Governmental Authority;
(iiix) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, Each of the representations and warranties of each made or reaffirmed by Borrower in this Amendment or in any of the Loan Parties set forth in the Financing Documents are other agreements, instruments and documents referred to herein shall be true and correct in all material respects correct; (except where already qualified x) Consummation of the transactions contemplated by materiality or Material Adverse Effectthe Junior Creditor Documents (including the funding to Borrower of an amount not less than $4,750,000) and payment by Borrower, in which casecash, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations Required Payments and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as $25,000 of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.Fee; and
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement Amendment shall become be effective on the first date on which each upon satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date Receipt by the Administrative Agent, Agent of this Amendment duly executed by the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.Required Lenders;
(b) Receipt by the Agent of (i) a certificate of a Responsible Officer of each Loan Party, in form and substance satisfactory to the Agent attaching a certified copy of resolutions of the Loan Parties approving and adopting this Amendment and authorizing the execution and delivery of this Amendment and (ii) such incumbency certificates and such other documents and certifications as the Agent may reasonably require to evidence that the Loan Parties are in good standing in their jurisdiction of incorporation;
(c) Receipt by the Agent of favorable opinions of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Goodsill ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment as the Lenders may reasonably request;
(d) Receipt by the Agent of copies of amendments to the Note Purchase Agreements in form and substance reasonably satisfactory to the Agent;
(e) Upon the reasonable request of any Lender, the Borrower has arranged for payment shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act;
(f) If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to it;
(g) Payment by the Loan Parties to the Agent and the Arranger, all fees due and payable to the Agent, the Lenders and the Arranger on the Eighth Amendment Effective Date date hereof; and
(h) Payment by the Loan Parties of all the reasonable and documented out-of-pocket costs and expenses of the Agent relating to this Amendment, including without limitation, the fees and expenses then due and payable pursuant to the Financing Documentsof ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Matson, Inc.)
Effectiveness; Conditions Precedent. This Agreement shall (a) The Issuer represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Section 7.02 and Section 9.02 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture. The Issuer, the Company, the Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which hereof upon execution by each of the following conditions have been satisfied or waived party hereto (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto).
(b) Borrower has arranged for payment The amendments set forth in Section 3 shall become operative on the Eighth Amendment Effective 2012 Indenture Consent Payment Date (as defined in the Consent Solicitation Statement) upon payment of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents2012 Indenture Notes Consent Payment (as defined in the Consent Solicitation Statement) (the “Operative Date”).
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies Subject to payment of the Pledgor shall have deposited into Consent Payment (as defined in the (AConsent Solicitation Statement) Construction Account, as a common equity contribution and receipt of the required consents from the other creditors under the Intercreditor Agreements to the Pledgor amendments set forth in Section 4, the 2012 Proposed Amendments set forth in Section 4 will become effective and operative at the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all election of the then-outstanding Bridge Loans (plus any premium Issuer at a future date determined by the Issuer in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminatedits sole discretion.
(d) The HoldCo Lenders shall have executed and delivered Notwithstanding anything to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth contrary in this Section 4 have been satisfied in accordance with the terms hereofSupplemental Indenture, (ii) after giving effect to the waivers set forth in the Waiver and all of the amendments set forth herein, in Sections 3 and 4 hereof will cease to be operative if the representations Issuer or an agent on its behalf does not pay the 2012 Indenture Notes Consent Payment (as defined in the Consent Solicitation Statement) to Euroclear and warranties of each Clearstream on behalf of the Loan Parties set forth Holders on the 2012 Indenture Consent Payment Date (as defined in the Financing Documents are true and correct in all material respects (except where already qualified Consent Solicitation Statement) as contemplated by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateConsent Solicitation Statement.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Third Supplemental Indenture (Encore Capital Group Inc)
Effectiveness; Conditions Precedent. This The effectiveness of this Amendment and the amendment to the Credit Agreement shall become effective on provided in Section 1 hereof are subject to the first date on which each satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received counterparts of this Amendment, duly executed by the Amended Borrowers, the Administrative Agent and Restated Control, Operations and Maintenance Agreement, dated as each of the Eighth Amendment Effective Date, executed by Project Company and GCE OperatingLenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf), but such delivery will be promptly followed by the delivery of original signature pages by each Person party hereto unless waived by the Administrative Agent; and
(b) All fees and expenses payable to the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent to the extent due and payable under Section 10.04(a) of the Credit Agreement) estimated to date and for which invoices have been presented a reasonable period of time prior to the effectiveness hereof shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
(c) Upon the reasonable request of any Lender made at least 10 days prior to the date hereof, each Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the form attached hereto as Exhibit G.PATRIOT Act, in each case at least 5 days prior to the date hereof.
(gd) The At least 5 days prior to the date hereof, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower. For purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received a payoff letter relating notice from such Lender prior to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party date hereof specifying its objection thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement The amendments contained herein shall become only be effective upon, and the obligation of Lenders to make the Effective Date Loan (as herein defined) is subject to, the satisfaction on the first date on which or before November 30, 2019 of each of the following conditions have been satisfied or waived precedent (such datethe date of satisfaction, the “Eighth Amendment Effective Date”):
(a) This Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to Agent:
(i) executed counterparts of this Amendment executed by all Borrowers, all Guarantors (if any), Agent and the Supermajority Lenders;
(ii) an executed and notarized counterpart of the Refinery Mortgage executed by Calumet Montana;
(iii) an executed counterpart of the Refinery Related Security Agreement executed by Calumet Montana; and
(iv) certified (A) resolutions of the board of directors or other applicable governing body of each Borrower and Guarantor (if any) which authorize the execution, delivery and performance of this Amendment, the Refinery Related Security Agreement and the Waiver Refinery Mortgage by all Borrowers and Guarantors (if any) party thereto and (B) copies of the articles or certificate (as applicable) of incorporation (or organization or formation) and bylaws (or partnership or company agreement) of each such Borrower and Guarantor;
(b) The 2019 Senior Notes Indenture shall have been executed on and delivered by all parties thereto, and $450,000,000 (or such greater amount to the Signing Date extent permitted by the Administrative AgentCredit Agreement) aggregate principal amount of unsecured senior notes (the “2019 Notes”) shall have been issued pursuant thereto, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each whicha true, when taken together, bear the signatures of each correct and complete copy of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable 2019 Senior Notes Indenture and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.2019 Notes;
(c) substantially concurrently Agent shall have received (i) a Notice of Borrowing, in accordance with Section 4.1 of the Credit Agreement, with respect to a General Revolver Loan (the “Effective Date Loan”) to be made on the Effective Date in an amount not to exceed the Refinery Asset Borrowing Base Component less an amount equal to the principal amount of 2019 Notes issued in excess of $550,000,000, which Effective Date Loan shall be used as required pursuant to the proviso of the first sentence of Section 9.1.11 of the Credit Agreement (it being understood that the foregoing limitation regarding the amount of the Effective Date Loan shall not restrict Borrower Agent from submitting Notices of Borrowing regarding other Loans to be made on the Effective Date in accordance with the Eighth Amendment Credit Agreement, which other Loans may be used for working capital, capital expenditures and other lawful corporate purposes of Obligors, including Permitted Acquisitions) and (ii) a certificate or certificates executed by a Senior Officer of each Borrower or MLP General Partner as of the Effective Date, in form and substance satisfactory to Agent, stating that (x) the conditions specified in Section 6.2(a)-(d) of the Credit Agreement, as applicable, have been satisfied and (y) the conditions specified in clauses (m) and (o)(i) below are satisfied;
(d) Agent shall be reasonably satisfied that, immediately prior to the Effective Date, (i) one or more parent companies Agent, on behalf of Lenders, holds a first priority, perfected Lien (subject only to Permitted Liens) on the Refinery Collateral, and that all related recordation, registration and/or notarial fees have been paid and (ii) none of the Pledgor Refinery Collateral is subject to any Liens other than Permitted Liens;
(e) Agent shall have deposited into the received (Ai) Construction Account, searches as of a common equity contribution recent date prior to the Pledgor Effective Date of UCC, judgment lien, tax lien and litigation lien search reports in the jurisdiction of the chief executive office of Calumet Montana and each jurisdiction where any Refinery Collateral is located or where a filing would need to be made in order to perfect Agent’s security interest in the Refinery Collateral, copies of the financing statements and liens on file in such jurisdictions and evidence that no Liens exist thereon other than Permitted Liens, including evidence that the “Collateral” (as defined in the “Collateral Trust Agreement” (as such term is defined in the Hedge Intercreditor Agreement)) does not consist of any Collateral, and (ii) UCC financing statements or amendments thereto for each appropriate jurisdiction as is necessary, in Agent’s reasonable discretion, to perfect Agent’s security interest in the Refinery Collateral;
(f) Agent shall have received with respect to Refinery Assets constituting real property that is the subject of the Refinery Mortgage (other than assets that are the subject of the Refinery Pipeline Easement Mortgage) (i) an appraisal of the Refinery Asset from CBRE and (ii) a customary Phase I environmental site assessment covering the Refinery Asset dated no more than 155 days prior to the Effective Date (or dated as of a more recent date prior to the effect date as Agent may decide in its reasonable discretion);
(g) Agent shall have received an ALTA mortgagee policy of title insurance in respect of the interests of Calumet Montana in and to the Refinery Asset, together with such endorsements as are reasonably required by Agent (such policies and endorsements being hereinafter referred to collectively as the “Title Policy”), in an amount reasonably acceptable to Lenders, issued by a nationally recognized title insurer and in form and substance, in each case, reasonably satisfactory to Lenders, and insuring the Agent that with respect to the real property interests for which the Title Policy is obtained: (i) Calumet Montana has valid fee title or right to control, occupy and use of such real property, free and clear of Liens other than Permitted Liens; and (ii) the Refinery Mortgage relating to such real property constitutes a valid, first priority Lien on the real property interests of Calumet Montana, free and clear of all Liens other than Permitted Liens;
(h) Agent shall have received a legal opinion of each of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, counsel for Obligors, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ PLLP, counsel for Agent, each dated as of the Effective Date;
(i) Agent shall have received copies of insurance policies and certificates of insurance of Calumet Montana with respect to the Refinery Collateral, in each case, meeting the requirements of Section 9.1.7 of the Credit Agreement;
(j) Borrowers shall have paid to Agent the fees described in that certain fee letter dated as of August 27, 2019 between MLP Parent and Bank of America, including without limitation the consent fee (the “Consent Fee”) to be paid to Agent for the Pro Rata benefit of the Lenders;
(k) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (including the reasonable fees and expenses of counsel (including each local counsel) for Agent) to the extent that the Borrower has received an invoice therefor at least two Business Days prior to the Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced);
(l) Agent shall have received a Borrowing Base Certificate calculated as of the last day of the month immediately preceding the Effective Date and giving pro forma effect to the Refinery Asset Borrowing Base Component;
(m) Upon giving effect to the funding of the Effective Date Loan and the Borrowerpayment by Borrowers of all fees and expenses incurred in connection herewith, an additional amount equal to Availability shall be at least $77,400,000 250,000,000;
(n) Agent shall have received a Beneficial Ownership Certification of MLP Parent, which shall be true and correct in all respects as of the Effective Date;
(Bo) Debt Service Revenue Account(i) the Representations and Warranties in Section 3(a) and Section 3(b), shall be true and correct as common equity contribution to of the Pledgor and the Borrower, an additional amount equal to $18,000,000Effective Date, (ii) the Refinery Related Security Agreement and the Refinery Mortgage have been duly executed and delivered on behalf of each Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) party hereto; and (iii) the HoldCo Lender Backstop Refinery Related Security Agreement shall have been terminated.and the Refinery Mortgage constitute a legal, valid and binding obligation of each Borrower party hereto, enforceable against it in accordance with its terms except as enforceability may be limited by applicable Insolvency Proceeding; and
(dp) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received such documentation and other information as has been reasonably requested by Agent in connection with this Amendment and the Amended and Restated Controltransactions contemplated hereby. Notwithstanding the foregoing, Operations and Maintenance Agreement, dated as if each of the Eighth foregoing conditions precedent (other than solely with respect to the Refinery Pipeline Easement Mortgage and the conditions precedent set forth in the immediately preceding clauses (a)(ii), (d), (e), (g), (h), (i), (k) and (o) solely related thereto (the “Pipeline Easement Conditions”)) are satisfied, then (x) this Amendment shall nonetheless become effective on such date, (y) the satisfaction of the Pipeline Easement Conditions shall be extended for a period of 30 days (or such longer period as Agent may otherwise agree in its sole discretion) following the Effective Date, executed by Project Company (the “Waiver Deadline”); provided however, that the Waiver Deadline shall not extend beyond November 30, 2019 and GCE Operating(z) if the Pipeline Easement Conditions are not satisfied on or prior to the Waiver Deadline, then on the Waiver Deadline, the Obligors shall repay the Effective Date Loan, plus accrued and unpaid interest, the failure to pay of which shall be deemed an Event of Default under the Credit Agreement. Without limiting the generality of the provisions of Section 11.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in the form attached hereto as Exhibit G.
(g) The Administrative this Section 2, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received a payoff letter relating notice from such Lender prior to the intercompany loanEffective Date specifying its objection thereto. If Agent or Lenders fund the Effective Date Loan when any conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or unknown at the time), dated it shall not operate as a waiver of (x) the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance right of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered Lenders to the Administrative Agent an Officer’s Certificate insist upon satisfaction of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person all conditions precedent with respect to this Agreement and the Waiverany subsequent funding, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence issuance of any pending proceeding for the dissolution Letters of Credit or liquidation grant of such Person.
any other accommodation; nor (ky) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no any Default or Event of Default has occurred and is continuing as due to such failure of the Eighth Amendment Effective Dateconditions or otherwise.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Effectiveness; Conditions Precedent. This Agreement Upon execution by each of Landlord and Tenant the agreement to amend contained in this Fifth Amendment shall become effective be fully binding on Landlord and Tenant as of the date hereof. Notwithstanding the foregoing, the specific amendments contained in Section 2 though Section 7 and the mutual releases set forth in Section 11 shall not take effect until the first date on which day of the first calendar month immediately following satisfaction, to Landlord's reasonable satisfaction, of each of the following conditions have been satisfied or waived listed below (such date, the “Eighth Amendment Effective Date”"EFFECTIVE DATE"):
(a) This Agreement and the Waiver Tenant shall have been executed on paid to Landlord as compensation for the Signing Date by the Administrative Agent, the Loan Parties Landlord's agreement to accept and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each early termination of the other parties hereto.Lease with respect to the Expansion Space and to consent to the lease modifications contained herein, immediately available funds in an amount equal to $6,750,000;
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date Tenant shall have paid to Landlord as reimbursement to Landlord of all reasonable its costs, expenses and documented out-of-pocket legal fees incurred in negotiating and expenses then due and payable pursuant documenting this Fifth Amendment, immediately available funds in an amount not to the Financing Documents.exceed $15,000;
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies Tenant shall have surrendered possession of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay Expansion Space in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.broom clean condition; and
(d) The HoldCo Lenders Not later than April 15, 2003, Tenant and Landlord shall have executed executed, and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders Landlord's lender shall have received a copy of a side letter agreementconsented to, dated as of the Eighth Amendment Effective Date, executed by Sponsor this Fifth Amendment. Landlord and the Lender Equity Owners, which side letter agreement shall be in form Tenant acknowledge and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be agree that in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each event all of the conditions set forth in this Section 4 above have not been satisfied in accordance with on or before April 15, 2003, this Fifth Amendment shall automatically be deemed terminated and shall be null and void and of no further force or effect, whereupon the terms hereofparties shall be released from all obligations hereunder, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as brokerage indemnity set forth in Section 28 below which shall expressly survive such termination.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement and the amendments to the Credit Agreement herein provided shall become effective on the first date on which each upon satisfaction of the following conditions have been satisfied or waived precedent (such datethe date of satisfaction thereof, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Datefollowing, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be each in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.:
(i) As counterparts of this Agreement, duly executed by the Eighth Amendment Effective DateBorrower, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory Subsidiary Loan Party, Bank of America (as the sole Term Loan Lender with respect to the Administrative Agent; (it being acknowledged and agreed that the copy Replacement Term Loan as of the Financial Model delivered to Amendment Effective Date), and the Required Revolving Lenders;
(ii) such documents and certificates as the Administrative Agent as or its counsel may reasonably request relating to the organization, existence and good standing of December 16, 2021each Loan Party, the 2022 Operating Budget delivered authorization of the Amendment and the transactions contemplated herein (including the increase of the Term Loan) and any other legal matters relating to the Administrative Agent as of December 16, 2021Loan Parties, the Construction Budget delivered to Loan Documents or the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory Transactions;
(iii) a favorable written opinion (addressed to the Administrative Agent and the Signatory Lenders).Lenders and dated the Amendment Effective Date) of J▇▇▇▇ Day, counsel for the Borrower and the Subsidiary Loan Parties;
(jiv) The Borrower has delivered to a certificate, dated the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is and signed by the President, a correct and complete copy Vice President or a Financial Officer of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directorsBorrower, member(s), partner(s) or other authorized governing body of such Person confirming compliance with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier dateparagraphs Sections 4.02(a) and (iiib) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.Credit Agreement;
(lv) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of UCC searches with respect to the Borrower and each Subsidiary Loan Party showing only those Liens effectuated after the Effective Date of the Credit Agreement as are permitted to exist under Section 6.02 of the Credit Agreement;
(b) the Borrower and each Subsidiary Loan Party will have taken such action as is reasonably deemed necessary by the Administrative Agent, if any, so that the Collateral and Guarantee Requirement shall continue to be in form satisfied as of the Amendment Effective Date;
(c) a fee shall have been paid to each Revolving Lender executing this Agreement equal to 0.05% times such Lender’s Revolving Commitment;
(d) all other fees and substance reasonably satisfactory expenses payable to the Administrative Agent and the Lenders (including the fees and expenses of counsel to the Administrative Agent) to the extent invoiced on or prior to the Agreement Date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Effectiveness; Conditions Precedent. This Agreement shall (a) The Issuer represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Sections 9.02 and 12.06 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 and 12.06 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture and to take all steps necessary to give effect to, and permit, the 2023 Proposed Amendments (as defined in the Consent Solicitation Statement). The Issuer, the Company, the Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which hereof upon execution by each of the following conditions have been satisfied or waived party hereto (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto).
(b) Borrower has arranged for payment The amendments set forth in Section 3 shall become operative on the Eighth Amendment Effective 2023 Indenture Consent Payment Date (as defined in the Consent Solicitation Statement) upon payment of the Existing 2023 Cabot Notes Consent Payment (as defined in the Consent Solicitation Statement) (the “Operative Date”). The Issuer shall provide prompt written notice to the Trustee that the Operative Date has occured. The Operative Date must occur prior to October 31, 2020. Notwithstanding any other provision of this Supplemental Indenture, if the Existing 2023 Cabot Notes Consent Payment has not been paid on or prior to such time, then (i) the Proposed Amendments shall not be given operative effect and the rights of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant Holders will continue as they were set forth in the Indenture immediately prior to the Financing DocumentsEffective Time, and (ii) the provisions of the Indenture will remain as set forth prior to the execution of this Supplemental Indenture and the Proposed Amendments will not become operative. If the Existing 2023 Cabot Notes Consent Payment has not been paid prior to 11:59 p.m., London time, on October 31, 2020, then the Issuer shall make an announcement via press release by sending a notice via the clearing systems and by posting a notice on the Luxembourg Stock Exchange website, in each case, stating that such event has not occurred and shall simultaneously provide a notice to the Trustee.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution Subject to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all provision of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of each of Borrower and Holdings dated as Counsel to the Trustee, payment of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy Existing 2023 Cabot Notes Consent Payment, receipt of the Organizational Documents for such Person; (ii) attached required consents from the other creditors under the Intercreditor Agreements to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth hereinin Section 4 and an enforceability opinion and capacity opinions relating to the ICA Amendment Agreement satisfactory to the Trustee, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as 2023 Proposed Amendments set forth in Section 2.
(m) As 4 will become effective and operative at the election of the Eighth Amendment Effective Date, Issuer at a future date determined by the Agent Reimbursement Letter shall have been amended Issuer in its sole discretion (including through the execution and restated, executed and delivered by each delivery of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative AgentICA Amendment Agreements).
Appears in 1 contract
Sources: First Supplemental Indenture (Encore Capital Group Inc)
Effectiveness; Conditions Precedent. This Agreement Amendment shall become effective as of the date (the “Effective Date”) on the first date on which when each of the following conditions have has been satisfied or waived (such date, the “Eighth Amendment Effective Date”):satisfied:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the a. The Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth this Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and duly executed by the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agenteach Subsidiary Guarantor, the Master Assignment Required Lenders and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) b. [Reserved.]
c. The Administrative Agent shall have received fully executed copies of all material transaction documents with respect to the issuance of the Preferred Stock and the DR Systems Acquisition.
d. The Borrower shall have certified in writing to the Administrative Agent that there are no further conditions to the consummation of the issuance of the Preferred Stock other than the effectiveness of this Amendment, and that there are no further conditions to the consummation of the DR Systems Acquisition with respect to the initial acquisition of approximately 90% of the Equity Interests of DR Systems other than receipt of proceeds of the Preferred Stock, and that each such transaction is expected to happen substantially simultaneously with the effectiveness of this Amendment.
e. Each of the following conditions with respect to the DR Systems Acquisition shall have been satisfied:
i. the Acquisition Consideration for the DR Systems Acquisition shall not exceed $80,000,000;
ii. immediately prior and after giving effect thereto, no Default or Event of Default then exists or would immediately result therefrom under the Amended and Restated ControlCredit Agreement;
iii. after giving effect to such transaction on a Pro Forma Basis, Operations and Maintenance Agreement, dated Borrower shall be in compliance with the Financial Covenants under the Amended Credit Agreement as of the Eighth Amendment Effective Datemost recent Test Period;
iv. the Board of Directors of the DR Systems shall not have indicated publicly its opposition to the consummation of such acquisition (which opposition has not been publicly withdrawn);
v. all transactions in connection therewith shall be consummated in all material respects, executed in accordance with all material applicable Legal Requirements;
vi. Borrower shall have provided the Administrative Agent, for the benefit of the Lenders, with historical financial statements for the last three fiscal years (or, if less, the number of years since formation) of DR Systems (audited if received by Project Company Borrower) and GCE Operating, unaudited financial statements thereof for the most recent interim period which are available; and
vii. Borrower shall have delivered to the Administrative Agent an Officers’ Certificate certifying that such transaction complies with this clause (e) (which shall be in the form attached hereto as Exhibit G.include detailed calculations showing compliance with Financial Covenants on a Pro Forma Basis).
(g) f. The Administrative Agent shall have received a payoff letter relating certificate, signed by a Financial Officer of the Borrower, certifying that both immediately before the issuance of the Preferred Stock and the consummation of the DR Systems Acquisition and immediately after giving effect to both such transactions on a Pro Forma Basis, the Borrower and its Subsidiaries (including, immediately after giving effect to the intercompany loanDR Systems Acquisition, dated as DR Systems and its Subsidiaries), on a consolidated basis, are Solvent.
g. After the consummation of the Eighth DR Systems Acquisition, neither DR Systems nor any of its Subsidiaries shall have outstanding any Indebtedness or Disqualified Capital Stock other than (i) the Loan and Credit Extensions under the Amended Credit Agreement and (ii) up to $1,000,000 of other Indebtedness that would be permitted under Section 6.01 of the Amended Credit Agreement.
h. The Administrative Agent shall have received with respect to DR Systems and its Subsidiaries (x) UCC searches of a recent date and (y) tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable instruments that name DR Systems or any of its Subsidiaries as debtor and that are filed in the state and/or county jurisdictions in which DR Systems or any such Subsidiary is organized or maintains its principal place of business.
i. The Administrative Agent shall have received an amendment fee for the ratable benefit of (and payable to) each Lender executing this amendment in an aggregate amount equal to 0.25% of the sum of all Loans outstanding and unused Commitments of the undersigned Lenders (the “Amendment Effective DateFee”).
j. In addition to payment in full in cash of the Amendment Fee, executed the Administrative Agent shall have received all other fees and amounts required to be paid by each party theretothe Borrowers in connection herewith, which shall be in form including all reasonable and substance reasonably satisfactory documented fees and expenses of counsel to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement shall (a) The Issuer represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Section 7.02 and Section 9.02 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture. The Issuer, the Company, the Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which hereof upon execution by each of the following conditions have been satisfied or waived party hereto (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto).
(b) Borrower has arranged for payment The amendments set forth in Section 3 shall become operative on the Eighth Amendment Effective 2013 Indenture Consent Payment Date (as defined in the Consent Solicitation Statement) upon payment of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents2013 Indenture Notes Consent Payment (as defined in the Consent Solicitation Statement) (the “Operative Date”).
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies Subject to payment of the Pledgor shall have deposited into Consent Payment (as defined in the (AConsent Solicitation Statement) Construction Account, as a common equity contribution and receipt of the required consents from the other creditors under the Intercreditor Agreements to the Pledgor amendments set forth in Section 4, the 2013 Proposed Amendments set forth in Section 4 will become effective and operative at the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all election of the then-outstanding Bridge Loans (plus any premium Issuer at a future date determined by the Issuer in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminatedits sole discretion.
(d) The HoldCo Lenders shall have executed and delivered Notwithstanding anything to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth contrary in this Section 4 have been satisfied in accordance with the terms hereofSupplemental Indenture, (ii) after giving effect to the waivers set forth in the Waiver and all of the amendments set forth herein, in Sections 3 and 4 hereof will cease to be operative if the representations Issuer or an agent on its behalf does not pay the 2013 Indenture Notes Consent Payment (as defined in the Consent Solicitation Statement) to Euroclear and warranties of each Clearstream on behalf of the Loan Parties set forth Holders on the 2013 Indenture Consent Payment Date (as defined in the Financing Documents are true and correct in all material respects (except where already qualified Consent Solicitation Statement) as contemplated by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateConsent Solicitation Statement.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Second Supplemental Indenture (Encore Capital Group Inc)
Effectiveness; Conditions Precedent. This The effectiveness of this Agreement shall become effective on and the first date on which each amendments to the Credit Agreement herein provided are subject to the satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as each of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be following documents or instruments in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.:
(i) As an original counterpart of this Agreement, duly executed by the Eighth Amendment Effective DateBorrower, the Borrower has delivered a copy of each of the Financial ModelCompany, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, each other Guarantor and each of the Lenders, together with all schedules and exhibits thereto duly completed;
(ii) a Note executed by the Borrower in favor of each case in form and substance reasonably satisfactory Lender requesting a Note;
(iii) with respect to each Financed Property which secures any Loan made under the Credit Agreement: (i) an amendment to the Administrative Agent; Mortgage (it being acknowledged and agreed that the copy “Mortgage Amendment”) for such Financed Property amending the description of the Financial Model delivered Obligations and/or Secured Indebtedness (as defined therein) to conform such Mortgage to the Administrative Agent as increased Commitments provided for herein, (ii) a favorable opinion of December 16, 2021, the 2022 Operating Budget delivered local counsel to the Administrative Agent as of December 16Borrower in the state where such Financed Property is located, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory addressed to the Administrative Agent and each Lender, as to such matters concerning the Signatory Lenders).
Mortgage (jas modified by the Mortgage Amendment) The Borrower has delivered to as the Administrative Agent may reasonably request, and (iii) an Officer’s Certificate endorsement to the Loan Title Insurance Policy issued (or to be issued) to Administrative Agent by S▇▇▇▇▇▇ National Title Company with respect to each Mortgage that the Mortgage as amended by the Mortgage Amendment continues to secure the Credit Agreement, as amended by this Agreement, and the Policy continues in full force and effect following the amendment of the Mortgage, without impairment in any way;
(iv) (i) a certificate of each of Borrower and Holdings Loan Party dated as of the Eighth Amendment Effective Date signed by a Responsible Officer, secretary or assistant secretary of such Loan Party certifying (iand attaching the resolutions adopted by such Loan Party approving or consenting to the terms of this Agreement, including the increase in Aggregate Commitments contemplated by Section 2(a) that attached to such certificate is a correct hereof, and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporationthe Borrower, certificate of formationsigned by a Responsible Officer, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency certifying that, before and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth hereinsuch increase, (A) the representations and warranties of each contained in Article V of the Credit Agreement and the other Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated Date, except to relate solely the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties were they are true and correct as of such earlier date) , and (iiiB) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred exists; and
(v) such other documents, instruments, opinions, certifications, undertakings, further assurances and is continuing other matters as of the Eighth Amendment Effective DateAdministrative Agent shall reasonably request.
(lb) As consideration for All fees and expenses payable to the Sixth Amendment Administrative Agent and the Forbearance Lenders (including the fees and Conditional Waiver Agreement and Consent No. 5, as expenses of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory counsel to the Administrative Agent) estimated to date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
Appears in 1 contract
Effectiveness; Conditions Precedent. (a) The effectiveness of the amendments and other provisions hereof and the making of Term Loan C are expressly subject to the following conditions precedent (all such documents and other items must be in form and substance satisfactory to the Lender):
(i) This Amendment duly executed by the Borrowers and the Lender and delivered to each other;
(ii) Amended and Restated Revolving Note duly executed by the Borrowers and delivered to Lender;
(iii) Term Loan C Note duly executed by the Borrowers and delivered to Lender;
(iv) Participation Agreement duly executed and delivered by Chatham and Lender (it being understood that in view of the fundings and commitments of Chatham that a portion of the fees and other compensation being paid to Lender shall become effective be shared by Lender with Chatham on such basis as they may agree);
(v) The amount of Term Loan C is funded to the Lender by Chatham pursuant to the Participation Agreement, and Chatham has otherwise complied with its obligations under the Participation Agreement;
(vi) AM Communications, Chatham and Lender shall have entered into a warrant rights agreement, in the form attached to this Amendment as Exhibit C-1 (the "Warrant Rights Agreement") and AM Communications shall have delivered (A) to Chatham a fully detachable warrant, substantially in the form attached to this Amendment Exhibit C-2 (the "First Chatham Warrant") to purchase 3.375% of the outstanding equity securities of AM Communications, and (B) to Lender a fully detachable warrant, substantially in the form attached to the First Amendment as Exhibit C-3 (the "First Lender Warrant") to purchase 0.375% of the outstanding equity securities of AM Communications;
(vii) Signed unconditional written commitment approved by Borrowers is delivered to the Lender from a Person acceptable to the Lender to provide $800,000 in cash in additional equity or convertible, subordinated debt to Borrowers by no later than April 1, 2003 (with Lender being satisfied that such Person has the financial wherewithal to provide such funding), which such commitment shall provide that the terms of subordination shall be acceptable to the Lender and requiring such Persons, if requested by the Lender, to execute and deliver to Lender a subordination agreement in form and substance satisfactory to the Lender;
(viii) Mortgage Modification Agreement duly executed by AM Communications is delivered to Lender;
(ix) Any and all title insurance endorsements to the existing title insurance policy is issued in favor of the Lender as the Lender may require in connection with the Mortgage Modification Agreement, together with payment of related search costs and premium expenses;
(x) Amendment to Assignments of Rents and Leases duly executed by AM Communications is delivered to Lender;
(xi) Amendment to Subordination Agreement duly executed by 1401077 Ontario, Ltd., 1418294 Ontario, Ltd., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Borrowers and the Lender whereby the parties shall have agreed to subordination terms consistent with Section 3(t) hereof (amending Section 13(m) of the Loan Agreement);
(xii) Amendment to Subordination Agreement duly executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Borrowers and the Lender whereby the parties shall have agreed to subordination terms consistent with Section 3(t) hereof;
(xiii) Amendment to Subordination Agreement duly executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Borrowers and the Lender whereby the parties shall have agreed to subordination terms consistent with Section 3(t) hereof;
(xiv) Letter Agreement ("▇▇▇▇▇▇▇ Letter Agreement") duly executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Borrowers whereby the parties shall have agreed that payment of the fiscal year 2004 bonus owing to the Johnsons shall not be due before January 1, 2004 and shall be paid by an offset against the outstanding promissory note issued by the Johnsons to AMC Services;
(xv) Subordination Agreement duly executed by NeST Technologies Corp. and NESTRONIX, Inc., the Borrowers and the Lender whereby the parties shall have agreed to subordination terms consistent with Section 9(e) of that certain proposal letter, dated as of February 10, 2003, among the Borrowers and the Lender (the "Proposal Letter");
(xvi) Certified copies of duly executed employment agreement between the Borrowers and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ (which shall also be in form and substance satisfactory to Chatham);
(xvii) Any and all agreements, instruments and documents required by the Lender to effectuate and implement the terms hereof (duly executed, where appropriate, by the Borrowers and such other parties, as applicable);
(xviii) Evidence that the execution, delivery and performance of this Amendment and each of the Notes, the Warrant Rights Agreement, the First Chatham Warrant, the First Lender Warrant and Other Agreements referred to in this Section 4(a) by each Borrower has been duly authorized by all necessary action, and that no amendment or other modification to the articles or certificate of incorporation or bylaws of any Borrower has been made since August 14, 2002 (except as delivered to the Lender on the date hereof) and that such documents (in the form previously delivered to the Lender) remain in full force and effect;
(xix) Written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., counsel to the Borrowers covering such matters related to this Amendment, the Notes, the Warrant Rights Agreement, the First Chatham Warrant, the First Lender Warrant and the Other Agreements referred to in this Section 4(a), and the transactions contemplated hereby and thereby, as Lender may request;
(xx) All items referred to in Section 11(a) of the Proposal Letter are delivered to Lender and Chatham;
(xxi) Payment to the Lender of the following fees: (A) the Facility Fee, and (B) the first installment of the Fixed Rate Fee;
(xxii) Payment of all outstanding out-of-pocket expenses of the Lender and Chatham in incurred by the Lender or Chatham in connection with this Amendment, the Participation Agreement and the making of Term Loan C (including without limitation fees and expenses of Blank Rome LLP, counsel to the Lender, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Chatham); and
(xxiii) Written agreement (which may be contained in the agreement referred to in clause (xv) of this Section) of Borrowers and non-Borrower parties to the Designated Contracts confirming that the aggregate gross amount of all obligations owing by Borrowers under the Designated Contracts (without netting or taking into effect any obligations owing to any Borrower) shall not be less than $1,100,000 at any time through March 31, 2003, which such minimum required number shall be increased during April 2003 and not less than $1,450,000 as of and at all times after April 30, 2003; provided, however, that if Borrowers do not receive the full $800,000 of equity or subordinated debt required by clause (vii) of this Section by April 1, 2003, each of the foregoing minimum amounts required as of and after April 1, 2003 shall be increased on a dollar for dollar basis by the amount, if any, by which additional equity or subordinated debt received by Borrowers pursuant to clause (vii) of this Section is less than $800,000 as of April 1, 2003;
(xxiv) Executed engagement letter between Borrowers and an independent experienced financial and management consultant, the identity of whom and terms and conditions of whose ongoing engagement shall be acceptable to the Lender in view of the additional extensions of credit requested of the Lender by the Borrowers as described herein (the "Consultant"); and
(xxv) Closing Certificate duly executed by the Chief Financial Officer of the Borrowers whereby the Chief Financial Officer shall have certified to the Lender, on behalf of the Borrowers, that the Borrowers have satisfied all of the conditions precedent contained in this Section 4(a).
(b) The date on which each all of the following conditions precedent set forth in Section 4(a) hereof shall have been satisfied or waived (such date, is referred to herein as the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth "First Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent."
Appears in 1 contract
Sources: Loan and Security Agreement (Am Communications Inc)
Effectiveness; Conditions Precedent. This The effectiveness of this Agreement shall become effective on and the first date on which each amendments to the Credit Agreement herein provided are subject to the satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one following documents or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be instruments in form and substance reasonably satisfactory acceptable to the Administrative Agent.:
(fi) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance One (1) original counterpart signature page of this Agreement, dated as of the Eighth Amendment Effective Date, duly executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent., each of Incremental Lenders commiting to the Incremental Loan (which, if any such Incremental Lender is not an existing Lender, shall evidence their joinder as a Lender under the Credit Agreement), Holdings, the Borrower and each Guarantor;
(hii) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably evidence satisfactory to the Administrative Agent to account for that substantially simultaneously with the issuance effectiveness hereof and the funding of the Equity Kicker Incremental Term Loan, the acquisition of all of the assets and certain liabilities of The ▇▇▇▇▇▇▇▇ Group, Inc. pursuant to the Lender Equity Owners through terms of that certain Asset Purchase Agreement between ReAble Therapeutics, Inc., The ▇▇▇▇▇▇▇▇ Group, Inc., H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ dated June 13, 2007 for an aggregate purchase price not in excess of $40,000,000 (excluding any purchase price adjustment, fees, and expenses) shall have been consummated (the Eighth Amendment Effective Date.“Acquisition”);
(iiii) As of the Eighth Amendment Effective Datesuch other documents, the Borrower has delivered a copy of each of the Financial Modelinstruments, the 2022 Operating Budgetopinions, the Construction Budget certifications, undertakings, further assurances and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to other matters as the Administrative Agent shall reasonably request; which, if any such Lender is not an existing Lender, shall evidence their joinder as a Lender under the Credit Agreement;
(b) No Default shall exist, or would result from the Borrowing of December 16the Incremental Term Loan or from the application of the proceeds thereof, 2021including, without limitation, Holdings and the 2022 Operating Budget delivered Borrower shall be in compliance with each provision of Section 7.02(i) of the Credit Agreement with respect to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 Acquisition; and
(c) all fees and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory expenses payable to the Administrative Agent and the Signatory Lenders).
Lenders (j) The Borrower has delivered to including the Administrative Agent an Officer’s Certificate reasonable fees and expenses of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory counsel to the Administrative Agent) estimated to date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement Amendment shall become effective on at the first date on which time (the “Amendment No. 2 Effective Date”) when each of the following conditions have has been satisfied or waived (such date, the “Eighth Amendment Effective Date”):satisfied:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received counterparts of this Amendment, duly executed by the Amended Borrower, the Administrative Agent and Restated Controlthe Lenders, Operations and Maintenance Agreementwhich counterparts may be delivered by telecopy or other electronic means (including .pdf).
(b) All fees required to be paid pursuant to those certain letter agreements, each dated as of the Eighth Amendment Effective DateDecember 22, executed by Project Company and GCE Operating2022, which shall be in the form attached hereto as Exhibit G.have been paid.
(gc) The All expenses payable to the Administrative Agent shall have received (including the fees and expenses of a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory single counsel to the Administrative Agent) to the extent due and payable under Section 10.04(a) of the Credit Agreement estimated to date and for which invoices have been presented a reasonable period of time prior to the effectiveness hereof shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
(hd) Schedule I Upon the reasonable request of any Lender or Additional Lender providing the Increased Commitments pursuant to Section 2.13 of the Credit Agreement, made at least five days prior to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment No. 2 Effective Date, the Borrower has delivered a copy of each of the Financial Modelshall have provided to such Lender or Additional Lender, as applicable, and such Lender or Additional Lender, as applicable, shall be reasonably satisfied with, the 2022 Operating Budgetdocumentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Construction Budget and the Construction Schedule to the Administrative AgentAct, in each case in form and substance reasonably satisfactory at least two days prior to the Administrative Agent; Amendment No. 2 Effective Date and (it being acknowledged and agreed that the copy of the Financial Model delivered y) at least two days prior to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment 2 Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender shall have received the GCEH Warrants as set forth in Section 2that so requests a Beneficial Ownership Certification.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement shall become be effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 shall have been satisfied in accordance with the terms hereof, (ii) after giving effect form and substance satisfactory to the waivers set forth in Second Lien Administrative Agent.
(a) The Second Lien Administrative Agent shall have received duly executed counterparts of this Agreement from each of the Waiver Borrowers, the Guarantors, the Second Lien Administrative Agent and the Second Lien Lenders.
(b) The Borrowers shall have paid all professional fees and expenses of the Second Lien Administrative Agent and the Second Lien Lenders in connection with this Agreement, the Loan Documents and the transactions contemplated hereby (including all fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in its capacity as counsel to the Second Lien Administrative Agent) pursuant to wire transfer instructions to be provided by the Second Lien Administrative Agent.
(c) The Second Lien Administrative Agent shall have received a favorable opinion(s) of counsel to the Loan Parties, addressed to the Second Lien Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents (including, without limitation, this Agreement), as the Second Lien Administrative Agent or the Second Lien Lenders may reasonably request (including, without limitation, New York law enforceability matters).
(d) The Second Lien Administrative Agent shall have received satisfactory evidence of the waiver of any and all events of default existing as of the effective date of this Agreement under that certain ISDA Master Agreement dated as of May 16, 2007 (as amended, restated, supplemented or otherwise modified, the “Master Agreement”) by and between Bank of America, N.A. and Prospect Medical Holdings, Inc.
(e) The Second Lien Administrative Agent and Second Lien Lenders shall have received a corresponding effective amendment and waiver to the First Lien Credit Agreement, in form and substance substantially consistent with this Agreement (with such changes as are applicable to only the First Lien Credit Agreement), and containing the consent of the First Lien Lenders and the First Lien Administrative Agent to the amendments to the Second Lien Credit Agreement set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, duly executed and delivered by each of the Borrower and the First Lien Administrative Agent, the Borrowers, each Guarantor and the First Lien Lenders.
(f) The Second Lien Administrative Agent shall be have received such other instruments, documents and certificates (including, without limitation, an updated Schedule 5.13 reflecting the Borrowers’ increased ownership interest in form and substance ▇▇▇▇▇▇▇) as the Second Lien Administrative Agent shall reasonably satisfactory to request in connection with the Administrative Agentexecution of this Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Prospect Medical Holdings Inc)
Effectiveness; Conditions Precedent. This Agreement The amendments contained herein shall become only be effective on upon the first date on which satisfaction or waiver of each of the following conditions have been satisfied precedent (the date of satisfaction or waived (such datewaiver, the “Eighth Amendment No. 3 Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to of this Amendment executed by the Borrower and each which, when taken together, bear the signatures of each of the other parties hereto.Lender;
(b) each of the representations and warranties made by the Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable in Section 3 hereof shall be true and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.correct;
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as certificate of a Responsible Officer of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
certifying that (i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, representations and warranties made by the 2022 Operating Budget, the Construction Budget Borrower in Section 3 hereof shall be true and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have 5.2 of the Credit Agreement (as amended in Annex A) has been satisfied or waived by the Agent in accordance with its sole discretion; provided that the terms hereof, (ii) after giving effect to the waivers condition set forth in this Section 2(c) may be satisfied within two (2) Business Days following the Waiver Amendment No. 3 Effective Date;
(d) the Corre Loan Documents (including, without limitation, the Corre Transaction Commitment Agreement and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respectsCorre Subordination Agreement) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended executed, shall be in full force and restated, executed and delivered by each of the Borrower and the Administrative Agent, effect and shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(e) the Borrower shall have contemporaneously paid the Deferred Interest Catchup Payment (as defined in the Credit Agreement) to the Agent;
(f) All Lender Group Expenses and all other outstanding out-of-pocket expenses of the Agent (including fees, costs, expenses and retainers of legal and financial advisors to the Agent) have been fully and indefeasibly paid in cash. Without limiting the foregoing, a reimbursement letter in favor of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (as counsel to the Agent) shall have been executed and shall be in full force and effect, and any retainer contemplated thereby should be fully funded; and
(g) the Borrower shall have contemporaneously received proceeds under the Corre Debt Facility in an amount no less than $22,500,000. The Agent shall, upon the satisfaction or waiver of the conditions contained in this Section 2, promptly provide written notice (which may be by email) to the Borrower and the Lenders of the effectiveness of this Amendment.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement shall (a) The Company represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Section 9.02 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture. The Company and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties heretohereof.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date The amendments set forth in Section 3 hereof shall become operative in respect of all reasonable of the Notes, and documented out-of-pocket fees and expenses then due and payable pursuant the terms of the Indenture shall be amended, supplemented, modified or deleted as provided for in Sections 3 through Section 5 below, only upon (i) the satisfaction or waiver of all of the conditions to the Financing DocumentsConsent Solicitation (as set forth in the Consent Solicitation Statement) and (ii) payment of the Early Consent Fee and Consent Fee (each as defined in the Consent Solicitation Statement), as applicable, in respect of all Notes that have provided such valid Consents. If the conditions set forth in the preceding sentence have not occurred on or prior to 5:00 p.m., New York City time on November 22, 2013, this Supplemental Indenture shall terminate immediately without having given effect to any amendments contained in Sections 3 through Section 5 hereof and without the need for further action hereunder or thereunder.
(c) substantially concurrently Once the amendments set forth in Section 3 hereof become operative as described in (b) above, Holders of Notes that have tendered their consent will be assigned a temporary CUSIP number for their Notes subject to such consent (the “Consenting Notes”) which is a different CUSIP number from the one under which they currently hold their Notes, and the Global Notes representing the Consenting Notes will bear the Private Placement Legend as set forth in the Indentue. Following the expiration of the restricted period applicable to such Notes, to the exent legally permissible and no longer required in order to maintain compliance with the Eighth Amendment Effective DateSecurities Act, (ithe Company will arrange for the Private Placement Legend to be removed and the temporary CUSIP number(s) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution will revert to the Pledgor and original CUSIP number for the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminatedNotes.
(d) The HoldCo Lenders shall have executed and delivered Pursuant to Section 2.13 of the HoldCo Administrative AgentIndenture, the Master Assignment and Assumption Agreement, dated as Company hereby notifies the Trustee of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy change of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account CUSIP numbers for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective DateConsenting Notes.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: First Supplemental Indenture (Exopack Holding Corp)
Effectiveness; Conditions Precedent. This Agreement The amendments contained herein shall become only be effective on upon the first date on which satisfaction or waiver of each of the following conditions have been satisfied precedent (the date of satisfaction or waived (such datewaiver, the “Eighth Amendment No. 2 Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties and the Required Lenders; and
(ii) such documentation and other parties hereto.information as has been reasonably requested by the Administrative Agent at least two Business Days prior to the date hereof with respect to the Loan Parties in connection with this Amendment;
(b) the Administrative Agent shall have received (i) the income statement of the Borrower has arranged and its Subsidiaries, on a consolidated basis, for payment the Fiscal Year ended 2016 and (ii) financial projections prepared by management of the Borrower consisting of (A) a balance sheet for the Borrower and its Subsidiaries, on a consolidated basis, for the Eighth Amendment Effective Date of Fiscal Year ending December 31, 2017, forecasted by each Fiscal Quarter therein, (B) income statements for the Borrower and its Subsidiaries, on a consolidated basis, for (I) the Fiscal Year ending December 31, 2017, forecasted by each Fiscal Quarter therein and (II) the Fiscal Year ending December 31, 2018, as a whole, (C) liquidity and Revolving Credit Facility utilization for each month in the Fiscal Year ending December 31, 2017; and
(c) all accrued reasonable and documented out-of-pocket costs and expenses of MLPFS and the Administrative Agent (including the reasonable fees and expenses then due of counsel (including each local counsel) for the Administrative Agent) shall have been paid to the extent that the Borrower has received an invoice therefor (with reasonable and payable customary supporting documentation) at least two Business Days prior to the Amendment No. 2 Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced), and all fees pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Dateengagement letter agreement dated as of February 10, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account2017, as a common equity contribution to the Pledgor by and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) between the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement MLPFS shall have been terminatedpaid.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. (a) This Agreement Amendment (other than the amendments set forth in Section 1 hereof) and the Termination Date Extension provided in Section 2 hereof (with respect to each Extending Lender that delivers its executed counterpart of this Amendment on or prior to the Effective Date) shall become be effective on upon the first date on which each satisfaction of the following conditions have been satisfied or waived precedent (such date, the “Eighth Amendment Effective Date”):
(a1) This the Administrative Agent shall have received (i) counterparts of this Amendment, duly executed by each Borrower, the Administrative Agent and Extending Lenders constituting the Required Lenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf) and (ii) a certificate of the Company dated as of the date hereof and signed by a Responsible Officer of the Company (A) certifying and attaching resolutions adopted by the Company approving or consenting to the Termination Date Extension and (B) certifying that the conditions set forth in Sections 3.02(a) and (b) of the Credit Agreement have been satisfied (with all references in such subsections to a Credit Extension being deemed to be references to the Termination Date Extension); and
(2) the Borrowers shall have paid (i) all fees required to be paid on the Effective Date pursuant to that certain Amended and Restated Engagement Letter dated as of October 2, 2020 by and among the Borrowers, JPMorgan Chase Bank, N.A., Bank of America and BofA Securities, Inc. and the Waiver Fee Letters (as defined therein), and (ii) to the extent the Borrowers have received an invoice therefor no later than 12:00 noon one (1) Business Day prior to the Effective Date, all other reasonable fees and expenses incurred or payable in connection with the execution and delivery of this Amendment (including the reasonable fees and expenses of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers pursuant to Section 9.12(a)(i) of the Credit Agreement shall have been paid in full.
(b) The amendments to the Credit Agreement provided in Section 1 hereof and the Termination Date Extension provided in Section 2 hereof (with respect to any Extending Lender that delivers its executed counterpart of this Amendment after the Effective Date and on or prior to the LIBOR Amendments Effective Date (any such Lender, an “Additional Extending Lender”)) shall be effective on the Signing Date by date (the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived“LIBOR Amendments Effective Date”) and when the Administrative Agent shall have received counterparts to each whichof this Amendment, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, duly executed by each party theretoBorrower, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenderseach Lender, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement Amendment, and the amendments contained herein, shall become not be effective on until the first date on which satisfaction of each of the following conditions have been precedent (the date the following conditions precedent are satisfied or waived (such date, being referred to as the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the The Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties heretofollowing in form and substance satisfactory to the Administrative Agent and each of which (unless otherwise specified) shall be original copies or telecopies promptly followed by original copies:
(i) A certificate of the Borrower signed by an Authorized Officer, dated the Amendment Effective Date certifying as to the representations and warranties set forth in Section 4.
(bii) Borrower has arranged for payment on A certificate dated the Eighth Amendment Effective Date and signed by the Secretary or an Assistant Secretary of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal certifying as appropriate as to: (x) all action taken by the Borrower to at least $77,400,000 validly authorize, duly execute and deliver this Amendment and any other Loan Documents executed and delivered in connection with this Amendment, and attaching copies of such resolution or other corporate or organizational action; (y) the names, authority and capacity of the Authorized Officers authorized to sign this Amendment and the other Loan Documents and their true signatures; and (Bz) Debt Service Revenue Account, copies of its organizational documents as common equity contribution in effect on the Amendment Effective Date certified as of a sufficiently recent date prior to the Pledgor Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence, good standing and qualification to engage in its business of the Borrower in the state of its organization and in each state where conduct of business or ownership or lease of properties or assets requires such qualification, except to the extent that the failure to be so qualified could not reasonably be expected to result in a Material Adverse Change;
(iii) This Amendment and any other Loan Documents executed and delivered in connection with this Amendment signed by an Authorized Officer in a sufficient number of counterparts for delivery to each Lender and the Administrative Agent, and this Amendment signed by the Administrative Agent and each Lender;
(iv) A written opinion of counsel for the Borrower, an additional amount equal dated the Second Amendment Effective Date addressed to $18,000,000, the Administrative Agent and each Lender and in form and substance satisfactory to the Administrative Agent;
(iiv) A Lien search in acceptable scope and with acceptable results;
(vi) Evidence that all Indebtedness (other than such Indebtedness permitted under Section 9.1 of the Amended Credit Agreement) of the Borrower shall repay have been paid in full and the commitments thereunder terminated and that all necessary termination statements, release statements and other releases in cash connection with all Liens securing such Indebtedness (other than such Liens permitted under Section 9.2 of the then-outstanding Bridge Loans (plus any premium in respect thereofAmended Credit Agreement) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
filed or satisfactory arrangements have been made for such filing (d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agentincluding payoff letters, the Master Assignment and Assumption Agreementif applicable, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent);
(vii) City National Bank and Truist Bank, as Exiting 364-Day Revolver Lenders, shall have received (or substantially concurrently with the Amendment Effective Date will receive) payment in full for all Obligations owing to them as Exiting 364-Day Revolver Lenders under the Existing Credit Agreement on the Amendment Effective Date; and
(viii) Such other documents in connection with this Amendment as the Administrative Agent or its counsel may reasonably request.
(fb) The Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership (to the extent requested by the Administrative Agent or the Lenders) and such other documentation and other information requested in connection with applicable “know your customer” rules and regulations and other Anti-Terrorism Laws, including the USA PATRIOT Act.
(c) The Borrower shall have paid all fees and expenses payable on or before the Second Amendment Effective as required by any Loan Document.
(d) There has been no event or circumstance since the date of the last audited financial statements of the Borrower that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Change. Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement or the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating notice from such Lender prior to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth proposed Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where specifying its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Personobjection thereto.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement The amendments contained herein shall become only be effective on upon the first date on which satisfaction or waiver of each of the following conditions have been satisfied precedent (the date of satisfaction or waived (such datewaiver, the “Eighth Amendment No. 3 Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one following documents or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be instruments in form and substance reasonably satisfactory acceptable to the Administrative Agent.:
(fi) The counterparts of this Amendment executed by the Loan Parties and the Required Lenders;
(ii) such documentation and other information as has been reasonably requested by the Administrative Agent shall have received at least two Business Days prior to the Amended and Restated Control, Operations and Maintenance date hereof with respect to the Loan Parties in connection with this Amendment;
(A) an executed copy of the Second Lien Credit Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Required Lenders)., which Second Lien Credit Agreement shall be on terms no more favorable to the lenders thereunder than the terms of the Credit Agreement (as amended by this Amendment) to the Lenders, and (B) evidence of receipt by the Borrower of net proceeds from the incurrence of loans thereunder in an amount not less than $110,000,000;
(jiv) The Borrower has delivered an executed copy of the Intercreditor Agreement with respect to the obligations under the Second Lien Credit Agreement, in form and substance satisfactory to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directorsRequired Lenders, member(s), partner(s) or other authorized governing body of such Person including with respect to this Agreement and prohibitions on the Waiver, and that such resolutions or other evidence prepayment of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and obligations thereunder;
(v) as to a satisfactory opinion of the qualification Loan Parties’ counsel regarding due execution, enforceability and non-contravention of such Person to do business agreements and law, in each jurisdiction where its operations require qualification to do business form and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered substance satisfactory to the Administrative Agent an Officer’s Certificate (and consistent in scope with the prior opinion delivered by the Loan Parties’ counsel to the Administrative Agent in connection with the Credit Agreement);
(vi) the initial Budget;
(vii) a perfection certificate, in form and substance satisfactory to the Administrative Agent;
(viii) a list setting forth, as of December 31, 2016, each of the Borrower’s subsidiaries that are CFCs for which the “applicable earnings”, of a CFC (the “Reference CFC”) and the “applicable earnings” of any other CFC through which the Borrower holds the shares of the Reference CFC are, in the aggregate, less than $5,000,000. For the purposes of this clause (b)(vi), the term “applicable earnings” has the same meaning as in section 956(b)(1) of the Internal Revenue Code and Holdings dated the term “CFC” means any direct or indirect subsidiary of Company that is treated as a ‘controlled foreign corporation’ within the meaning of section 957(a) of the Internal Revenue Code;
(ix) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Eighth Amendment Effective Date certifying (iA) that each all of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents this Amendment are true and correct in all material respects (except where already qualified or, to the extent any such representation and warranty is modified by a materiality or Material Adverse EffectEffect standard, in which case, all respects) as of such date (except to the extent that such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to expressly relate solely to an earlier date, in which case such representations and warranties were they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist, or would result from the occurrence of the Amendment No. 3 Effective Date and (iiiC) after giving effect to the waivers set forth that since December 31, 2016, there have not occurred any facts, circumstances, changes, developments or events which, individually or in the Waiver and the amendments set forth hereinaggregate, no Default have constituted or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.would reasonably be expected to result in, a Material Adverse Effect;
(lx) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restateda solvency certificate, executed and delivered by each a Responsible Officer of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent; and
(xi) executed copies of such security documentation as may be reasonably requested by the Administrative Agent.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. This Agreement shall become be effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 shall have been satisfied in accordance with the terms hereof, (ii) after giving effect form and substance satisfactory to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties Second Lien Administrative Agent.
(a) The Second Lien Administrative Agent shall have received duly executed counterparts of this Agreement from each of the Loan Parties set forth in Borrowers, the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse EffectGuarantors, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver Second Lien Administrative Agent and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateSecond Lien Lenders.
(lb) As consideration for The Borrowers shall have paid all professional fees and expenses of the Sixth Amendment Second Lien Administrative Agent and the Forbearance Second Lien Lenders in connection with this Agreement, the Loan Documents and Conditional Waiver Agreement the transactions contemplated hereby (including all fees and Consent No. 5, expenses of Winston & ▇▇▇▇▇▇ LLP in its capacity as counsel to the Second Lien Administrative Agent and all fees and expenses of ▇▇▇▇▇▇▇ & Marsal) pursuant to wire transfer instructions to be provided by the Eighth Amendment Effective Date, each Lender Second Lien Administrative Agent.
(c) The Second Lien Administrative Agent shall have received a corresponding amendment to the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective DateFirst Lien Credit Agreement, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably substantially consistent with this Agreement (with such changes as are applicable only to the First Lien Credit Agreement), duly executed by the First Lien Administrative Agent, the Borrowers, each Guarantor and the First Lien Lenders.
(d) The Borrowers shall be in compliance with their obligations under that certain fee letter among the Borrowers, Banc of America Securities, LLC and Bank of America, N.A. dated January 28, 2008 (as amended by that certain amendment thereto as of the date hereof, the "Amendment Fee Letter").
(e) The Second Lien Administrative Agent shall have received a duly executed amendment to the Fee Letter in form and substance satisfactory to the Second Lien Administrative Agent.
(f) In addition to any amounts previously paid or owing to the Second Lien Lenders, the Borrowers shall have paid an amendment fee in an amount equal to: (i) 50 basis points times the aggregate outstanding principal amount of each consenting Second Lien Lender's Term Loans to the Borrowers (in each case, (x) including Bank of America, N.A., in its capacity as a Second Lien Lender, and (y) as of the effective date of this Agreement) to be paid in cash on the effective date of this Amendment plus (ii) 100 basis points times the aggregate outstanding principal amount of each consenting Second Lien Lender's Term Loans to the Borrowers (in each case, (x) including Bank of America, N.A., in its capacity as a Second Lien Lender, and (y) as of the effective date of this Agreement) to be paid in kind by adding such 100 basis fee amount to the outstanding principal of the Term Loans on the effective date of this Amendment.
(g) The Revolving Loan Account (as such term is defined in the First Lien Credit Agreement, the "Revolving Loan Account") shall have been established and such account shall be subject to the existing deposit account control agreement (with such supplements and amendments as may be necessary or desirable) perfecting the Administrative Agent's security interest (for the benefit of the Secured Parties) in PMG's Deposit Accounts (including the Revolving Loan Account) and otherwise in accordance with the Collateral Agreement prior to the disbursement thereinto of the proceeds from any Revolving Credit Loan (as such term is defined in the First Lien Credit Agreement).
(h) The Second Lien Administrative Agent shall have received a favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to the Second Lien Administrative Agent and each Second Lien Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Second Lien Administrative Agent or the Required Lenders may reasonably request.
(i) The Second Lien Administrative Agent shall have received a duly executed side letter from the Borrowers in form and substance satisfactory to the Second Lien Administrative Agent.
(j) The Second Lien Administrative Agent shall have received an amendment to that certain Deposit Account Control Agreement dated as of October 10, 2007 (the "DACA") among Prospect Medical Holdings, Inc., Prospect Medical Group, Inc., Prospect Medical Systems, Inc., ProMed Health Care Administrators, Pomona Valley Medical Group, Inc., Upland Medical Group, Professional Medical Corporation, the First Lien Administrative Agent, the Second Lien Administrative Agent and Bank of America, N.A., as depository bank, adding the Revolving Loan Account as an Account (as defined in the DACA) under the DACA.
(k) The Second Lien Administrative Agent shall have received such other instruments, documents and certificates as the Second Lien Administrative Agent shall reasonably request in connection with the execution of this Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Prospect Medical Holdings Inc)
Effectiveness; Conditions Precedent. This Agreement Amendment shall become effective on as of the first date on which hereof (the “Fifth Amendment Effective Date”) when, and only when, each of the following conditions shall have been satisfied or waived (or, in the case of clause (d) below, will be substantially contemporaneously satisfied on such date), in the “Eighth Amendment Effective Date”):sole discretion of the Agent and the Required Lenders:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative The Agent shall have received counterparts to each which, when taken together, bear the signatures of this Amendment duly executed by each of the other parties hereto.Loan Parties and each of the Required Lenders;
(b) Borrower has arranged for payment on The Agent shall have received the Eighth Fifth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.Fee;
(c) substantially concurrently The Agent shall have received the financial information and other materials required pursuant to Section 7.01(b) of the Credit Agreement and the Compliance Certificate required pursuant to Section 7.02(b) of the Credit Agreement, in each case, with respect to the fiscal quarter ended March 31, 2016; provided that such Compliance Certificate may contain a statement that such Compliance Certificates and the related financial statements are being delivered subject to any good faith adjustments that may arise in connection with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor Borrower’s financial accounting remediation and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.audit process;
(d) The HoldCo Lenders Loan Parties shall have executed and delivered irrevocably deposited (or caused to be deposited) with the HoldCo Administrative Agent, trustee under the Master Assignment and Assumption Agreement, dated as indenture a sufficient amount of the Eighth Amendment Effective Date, by proceeds of the Permitted Senior Note Refinancing Indebtedness to effectuate a satisfaction and among discharge in accordance with Article 11 of the HoldCo Lenders, as Assignors, Indenture in connection with the Sponsor, as Assignee and redemption of the HoldCo Administrative Agent.Senior Notes;
(e) The Lenders Loan Parties shall have received a copy of a side letter agreementpaid all reasonable fees, dated as costs and expenses of the Eighth Agent (including, without limitation, fees, costs and expenses of counsel and of the Agent Financial Advisor) incurred in connection with this Amendment, to the extent invoiced to the Borrower at least one Business Day prior to the Fifth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.; and
(f) The Administrative Agent shall have received the Amended such other documents, instruments and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (certificates as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member Agent or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each any Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Personreasonably request.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Hanger, Inc.)
Effectiveness; Conditions Precedent. This Agreement shall become be effective on the first date on which each when all of the following conditions set forth in this Section 3 shall have been satisfied or waived (such date, in form and substance satisfactory to the “Eighth Amendment Effective Date”):Administrative Agent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the The Administrative Agent shall have received duly executed counterparts to each which, when taken together, bear the signatures of this Agreement from each of the other parties heretoBorrower, its Subsidiaries, the Administrative Agent and each Lender consenting to the terms hereof (each such Lender, a “Consenting Lender”) and acknowledged by each Lender not consenting to this Agreement and exiting the credit facility concurrently with the effectiveness hereof (each such Lender, an “Exiting Lender”).
(b) The Borrower has arranged for payment on the Eighth Amendment Effective Date of shall have paid all reasonable and documented out-of-pocket professional fees and expenses then due of the Administrative Agent in connection with this Agreement, the Loan Documents and payable the transactions contemplated hereby (including all reasonable fees and expenses of Winston & ▇▇▇▇▇▇ LLP in its capacity as counsel to the Administrative Agent) pursuant to wire transfer instructions to be provided by the Financing DocumentsAdministrative Agent.
(c) substantially concurrently with In addition to any amounts previously paid or owing to the Eighth Amendment Effective DateAdministrative Agent or Lenders, (i) one or more parent companies of the Pledgor Borrower shall have deposited into the (A) Construction Account, as a common equity contribution paid to the Pledgor and Administrative Agent for the Borrower, benefit of each Consenting Lender a consent fee in an additional amount equal to at least $77,400,000 and 25 basis points times the sum of each Consenting Lender’s Commitment (B) Debt Service Revenue Account, as common equity contribution after giving effect to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (iiCommitment Reduction set forth in Section 2(f) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminatedabove).
(d) The HoldCo Lenders Administrative Agent shall have executed and delivered received a favorable opinion of counsel to the HoldCo Borrower, addressed to the Administrative AgentAgent and each Lender, in form and substance satisfactory to the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders deposit account (the “Cash Collateral Account”) referenced in Section 2(b) hereof shall have received a copy been established and cash collateral in an amount equal to 100% of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement all Outstanding Amounts shall be in form and substance reasonably satisfactory to the Administrative Agenthave been deposited therein.
(f) The Cash Collateral Account shall be subject to a deposit account control agreement perfecting the Administrative Agent shall have received Agent’s security interest (for the Amended and Restated Control, Operations and Maintenance Agreement, dated as benefit of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.Secured Parties).
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loansuch other instruments, dated documents and certificates as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, shall reasonably request in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance connection with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties execution of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Datethis Agreement.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement shall become be effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 shall have been satisfied in accordance with the terms hereof, (ii) after giving effect form and substance satisfactory to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties First Lien Administrative Agent.
(a) The First Lien Administrative Agent shall have received duly executed counterparts of this Agreement from each of the Loan Parties set forth in Borrowers, the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse EffectGuarantors, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver First Lien Administrative Agent and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateFirst Lien Lenders.
(lb) As consideration for The Borrowers shall have paid all professional fees and expenses of the Sixth Amendment First Lien Administrative Agent and the Forbearance First Lien Lenders in connection with this Agreement, the Loan Documents and Conditional Waiver Agreement the transactions contemplated hereby (including all fees and Consent No. 5, expenses of Winston & ▇▇▇▇▇▇ LLP in its capacity as counsel to the First Lien Administrative Agent and all fees and expenses of ▇▇▇▇▇▇▇ & Marsal) pursuant to wire transfer instructions to be provided by the Eighth Amendment Effective Date, each Lender First Lien Administrative Agent.
(c) The First Lien Administrative Agent shall have received a corresponding amendment to the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective DateSecond Lien Credit Agreement, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably substantially consistent with this Agreement (with such changes as are applicable only to the Second Lien Credit Agreement), duly executed by the Second Lien Administrative Agent, the Borrowers, each Guarantor and the Second Lien Lenders.
(d) The Borrowers shall be in compliance with their obligations under that certain fee letter among the Borrowers, Banc of America Securities, LLC and Bank of America, N.A. dated January 28, 2008 (as amended by that certain amendment thereto as of the date hereof, the "Amendment Fee Letter").
(e) The First Lien Administrative Agent shall have received a duly executed amendment to the Fee Letter in form and substance satisfactory to the First Lien Administrative Agent.
(f) In addition to any amounts previously paid or owing to the First Lien Lenders, the Borrowers shall have paid an amendment fee in an amount equal to: (i) 50 basis points times the sum of (A) each consenting First Lien Lender's Revolving Credit Commitment plus (B) the aggregate outstanding principal amount of each consenting First Lien Lender's Term Loans to the Borrowers (in each case, (x) including Bank of America, N.A., in its capacity as a First Lien Lender, and (y) as of the effective date of this Agreement) to be paid in cash on the effective date of this Amendment plus (ii) 100 basis points times the sum of (A) each consenting First Lien Lender's Revolving Credit Commitment plus (B) the aggregate outstanding principal amount of each consenting First Lien Lender's Term Loans to the Borrowers (in each case, (x) including Bank of America, N.A., in its capacity as a First Lien Lender, and (y) as of the effective date of this Agreement) to be paid in kind by adding such 100 basis fee amount to the outstanding principal of the Revolving Credit Loans or Term Loans, as applicable, on the effective date of this Amendment.
(g) The Revolving Loan Account shall have been established and such account shall be subject to the existing deposit account control agreement (with such supplements and amendments as may be necessary or desirable) perfecting the Administrative Agent's security interest (for the benefit of the Secured Parties) in PMG's Deposit Accounts (including the Revolving Loan Account) and otherwise in accordance with the Collateral Agreement prior to the disbursement thereinto of the proceeds from any Revolving Credit Loan.
(h) The First Lien Administrative Agent shall have received a favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to the First Lien Administrative Agent and each First Lien Lender, as to such matters concerning the Loan Parties and the Loan Documents as the First Lien Administrative Agent or the Required Lenders may reasonably request.
(i) The First Lien Administrative Agent shall have received a duly executed side letter from the Borrowers in form and substance satisfactory to the First Lien Administrative Agent.
(j) The First Lien Administrative Agent shall have received an amendment to that certain Deposit Account Control Agreement dated as of October 10, 2007 (the "DACA") among Prospect Medical Holdings, Inc., Prospect Medical Group, Inc., Prospect Medical Systems, Inc., ProMed Health Care Administrators, Pomona Valley Medical Group, Inc., Upland Medical Group, Professional Medical Corporation, the First Lien Administrative Agent, the Second Lien Administrative Agent and Bank of America, N.A., as depository bank, adding the Revolving Loan Account as an Account (as defined in the DACA) under the DACA.
(k) The First Lien Administrative Agent shall have received such other instruments, documents and certificates as the First Lien Administrative Agent shall reasonably request in connection with the execution of this Agreement.
Appears in 1 contract
Sources: First Lien Credit Agreement (Prospect Medical Holdings Inc)
Effectiveness; Conditions Precedent. This Agreement (a) The parties hereto agree that upon the satisfaction of each of the following conditions precedent all amendments contained herein (other than amendments relating to the New Markets Tax Credit Financing) and the consents contained in Section 7 below shall become be effective on (the first date on which “Second Amendment Effective Date”) when each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):satisfied:
(ai) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to of this Second Amendment, duly executed by each whichBorrower, when taken togethereach Guarantor, bear the signatures of Administrative Agent and each of the Lenders, which counterparts may be delivered by telefacsimile or other parties hereto.electronic means (including .pdf);
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of Administrative Agent and the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Revolving Credit Lenders shall have executed and delivered to the HoldCo Administrative Agentreceived, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent, such authorizing resolutions, incumbency certificates, opinions of counsel and other documents as described in Section 2.14(b) of the Credit Agreement with respect to Tile Shop Lending as the Administrative Agent and the Revolving Credit Lenders may request in order for Tile Shop Lending to become a Designated Borrower under Section 2.14 of the Credit Agreement;
(iii) the Administrative Agent shall have received a duly executed Designated Borrower Request and Assumption Agreement, a Guaranty Joinder Agreement and a Security Joinder Agreement from Tile Shop Lending, along with all necessary supplemental schedules thereto;
(iv) the Administrative Agent shall have received a Pledge Agreement Supplement executed and delivered by Holdings evidencing the pledge thereunder by Holdings of all of its capital stock in Tile Shop Lending, along with all stock certificates and related powers, if any, required thereby;
(v) the Administrative Agent shall have received completed UCC financing statements for the state of Delaware necessary for perfecting the security interest in the Collateral granted by Tile Shop Lending pursuant to the Security Joinder Agreement; and
(vi) both (i) an amendment fee shall have been received by the Administrative Agent for each Lender executing this Second Amendment by 5:00 p.m. (New York time) on July 8, 2013 for the account of such Lender, paid to the Administrative Agent, equal to 0.10% (10 bps) multiplied by (A) in the case of the Revolving Credit Lenders, each such Revolving Credit Lender’s Revolving Credit Commitment as of the Second Amendment Effective Date and (B) in the case of the Term Lenders, each such Term Lender’s Outstanding Amount of Term Loans as of the Second Amendment Effective Date; and (ii) all other reasonable fees and expenses incurred or payable in connection with the execution and delivery of this Second Amendment (including the reasonable fees and expenses of counsel to the Administrative Agent to the extent due and payable under Section 10.04(a) of the Credit Agreement) shall have been paid in full.
(fb) The parties hereto further agree that the Loan Parties shall not enter into the New Markets Tax Credit Financing and all amendments contained herein relating to the New Markets Tax Credit Financing shall not be effective unless and until, in addition to the satisfaction of the items referred to in clause (a) above, substantially simultaneously with the closing of the New Markets Tax Credit Financing, the Administrative Agent has received the following:
(i) the Administrative Agent shall have received certified copies of the New Markets Tax Credit Financing Documents as the Administrative Agent may request, each in form and substance satisfactory to the Administrative Agent;
(ii) the Administrative Agent shall have received a final sources and uses analysis for the New Markets Tax Credit Financing, in form an substance satisfactory to the Administrative Agent;
(iii) the Administrative Agent shall have received the Amended original promissory notes issued to Tile Shop Lending in connection with the New Markets Tax Credit Investments, together with duly executed undated endorsements in blank affixed thereto and Restated Control, Operations such other documentation and Maintenance Agreement, dated information as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall may be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating necessary to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to enable the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to realize upon such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied promissory notes in accordance with their respective terms or transfer the terms hereofpromissory notes as may be permitted under the Loan Documents or by applicable law, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each including collateral assignments of the Loan Parties set forth loan agreements and related security documents created in favor of Tile Shop Lending in connection with the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateNew Markets Tax Credit Investments.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement shall become effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction AccountEach of the Issuer, as a common equity contribution to the Pledgor Parent, VM FinanceCo, the Company and the Borrower, an additional amount equal to at least $77,400,000 Subsidiary Guarantors represents and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Section 9.02 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have consented to the waivers and amendments set forth in the February 2013 Consent Solicitation Statement with respect to the Notes and the Indenture and have authorized and directed the Trustee to execute this Supplemental Indenture. The Issuer, the Parent, VM FinanceCo, the Company, the Subsidiary Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the date hereof.
(B) The waivers and amendments set forth in Sections 3 and 4 hereof shall become operative in respect of the Notes, and the terms of the Indenture and each Global Note shall be waived, amended, supplemented, modified or deleted as provided for in Sections 3 and 4 below, (i) upon execution of this supplemental indenture with respect to Section 4 have been satisfied 3 below and (ii) upon the consummation of the Change of Control Transaction with respect to Section 4, in accordance with the terms hereof, (ii) after giving effect of the February 2013 Consent Solicitation Statement which shall be evidenced by delivery to the waivers set forth Trustee of a notice confirming the consummation of the Change of Control Transaction by the Issuer. If the Trustee receives written notice from the Issuer that the Waiver Payment (as defined in the Waiver and February 2013 Consent Solicitation Statement) or the amendments set forth hereinAmendment Payment (as defined in the February 2013 Consent Solicitation Statement) is not made promptly following the Expiration Time (as defined in the February 2013 Consent Solicitation Statement) or the Amendment Payment Date (as defined in the February 2013 Consent Solicitation Statement), respectively, in accordance with the representations and warranties of each terms of the Loan Parties set forth February 2013 Consent Solicitation Statement, this Supplemental Indenture shall terminate immediately without any waivers or amendments contained in the Financing Documents are true Sections 3 and correct in all material respects (except where already qualified by materiality 4 hereof becoming or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5remaining operative, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agentapplicable, and shall be in form and substance reasonably satisfactory to without the Administrative Agentneed for further action hereunder or thereunder.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement The amendments contained herein shall become only be effective on upon the first date on which satisfaction or waiver of each of the following conditions have been satisfied precedent (the date of satisfaction or waived (such datewaiver, the “Eighth Amendment No. 6 Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each duly executed copies of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable following, each in form and documented out-of-pocket fees and expenses then due and payable pursuant substance satisfactory to the Financing Documents.Agent:
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution that certain Amendment No. 5 to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Unsecured Term Loan Credit Agreement, dated as of the Eighth Amendment No. 6 Effective Date, by and among the HoldCo Lenders, as AssignorsBorrower, the Sponsorlenders party thereto from time to time and Corre (“Amendment No. 5 to Corre Credit Agreement”), as Assignee and duly executed by each of the HoldCo Administrative Agent.parties thereto;
(eii) The Lenders shall have received a copy the ABL Credit Agreement, duly executed by each of a side letter agreementthe parties thereto;
(iii) the Intercreditor Agreement, duly executed by each of the parties thereto;
(iv) the Purchase Right Side Letter dated as of February 11, 2022, among Corre and the Eighth Amendment Effective DateAgent, and acknowledged by the ABL Agent and the Borrowers, amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and in a manner not inconsistent with the terms of the Intercreditor Agreement, duly executed by Sponsor and each of the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.parties thereto;
(fv) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance that certain Common Stock Subscription Agreement, dated as of February 11, 2022, by and among the Eighth Amendment Effective DateBorrower and the Corre Holders (as defined herein), duly executed by Project Company and GCE Operating, which shall be in each of the form attached hereto as Exhibit G.parties thereto;
(gvi) The Administrative Agent shall have received a payoff letter relating to the intercompany loanthat certain Second Amended and Restated Registration Rights Agreement, dated as of February 11, 2022, by and among the Eighth Amendment Effective DateBorrower, the APSC Holdco II, L.P. and Corre Opportunities Qualified Master Fund, LP, Corre Horizon Fund, LP and Corre Horizon II Fund, LP (the “Corre Holders”, duly executed by each party thereto, which shall be in form and substance reasonably satisfactory to of the Administrative Agent.parties thereto (the “Subscription Agreement”);
(hvii) Schedule I to the Holdco Borrower LLC Agreement has been updated that certain Waiver of Anti-Dilution Adjustments and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance Cash Transaction Exercise, dated as of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective DateFebruary 11, 2022, by and among the Borrower has delivered a copy of and APSC Holdco II, L.P., duly executed by each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).parties thereto;
(jviii) The Borrower has delivered to the Administrative Agent an Officer’s Certificate that certain Waiver of each of Borrower Anti-Dilution Adjustments and Holdings Cash Transaction Exercise, dated as of February 11, 2022, by and among the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement Borrower and the WaiverCorre Holders, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that duly executed by each of the conditions set forth parties thereto;
(ix) a certificate of a Responsible Officer of the Borrower certifying that (A) the each of the representations and warranties made by the Borrower in this Section 4 have been satisfied in accordance with the terms hereof3 hereof shall be true and correct, (iiB) that both immediately prior to and immediately after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth hereinthis Amendment, no Default or Event of Default exists, (C) each Loan Party has occurred complied with, or obtained a waiver from the applicable agent with respect to, all conditions to be satisfied by such Loan Party to the effectiveness of the ABL Credit Agreement and is continuing to Amendment No. 5 to the Corre Credit Agreement and (D) the Borrower shall have received $10,000,000 from Corre in connection with the issuance of common stock of the Borrower in accordance with the terms of the Subscription Agreement (the “New Equity Investment”);
(x) that certain Deed of Ranking, dated as of the Eighth Amendment No. 6 Effective Date., by and among the Agent, as Junior Pledgee (as defined therein), the ABL Agent, as Senior Pledgee (as defined therein) and the pledgors party thereto from time to time; and
(lxi) As consideration for Control Agreements (as defined in the Sixth Amendment Guaranty and Security Agreement) with respect to each Deposit Account (as defined in the Forbearance Guaranty and Conditional Waiver Agreement Security Agreement) and Consent No. 5Securities Account (as defined in the Guaranty and Security Agreement) of the Loan Parties (other than any Excluded Account (as defined in the Guaranty and Security Agreement)), duly executed and entered into as of the Eighth Amendment No. 6 Effective DateDate by each of the ABL Agent, the Agent, the applicable Loan Party and the bank maintaining such Deposit Account or Securities Account, as applicable; provided that no such Control Agreement shall be required for the Canadian Loan Parties to satisfy this clause (xi);
(b) the Agent shall have received counterparts of this Amendment, duly executed by the Borrower, each Lender and the Agent;
(c) the obligations of the Loan Parties pursuant to that certain ABL Credit Agreement, dated as of December 18, 2020, by and among the Borrower, the lenders party thereto from time to time and Citibank, N.A., in its capacity as administrative agent and/or collateral agent for the lenders party thereto (as amended, restated, supplemented or otherwise modified) shall have been refinanced and fully discharged;
(d) the Borrower shall have received the GCEH Warrants as set forth New Equity Investment;
(e) each of the representations and warranties made by the Borrower in Section 2.3 hereof shall be true and correct; and
(mf) As All Lender Group Expenses and all other outstanding out-of-pocket expenses of the Eighth Amendment Effective DateAgent (including fees, costs, expenses and retainers of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the Agent, and all other legal and financial advisors to the Agent Reimbursement Letter shall (including UK, Dutch and Canadian local counsel to the Agent) have been amended fully and restatedindefeasibly paid in cash. The Agent shall, executed and delivered upon the satisfaction or waiver of the conditions contained in this Section 2, promptly provide written notice (which may be by each of email) to the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to Lenders of the Administrative Agenteffectiveness of this Amendment.
Appears in 1 contract
Effectiveness; Conditions Precedent. This The effectiveness of this Agreement, and the amendments to the Credit Agreement shall become effective on provided in Paragraph 1 hereof and the first date on which consents and waivers provided for in Paragraph 2 hereof, are all subject to the satisfaction of each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as each of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be following documents or instruments in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.:
(i) As thirteen (13) original counterparts of this Agreement, duly executed by the Eighth Amendment Effective DateBorrower, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form Guarantor and substance reasonably satisfactory each of the Lenders, together with all schedules and exhibits thereto duly completed;
(ii) resolutions of the Board of Directors of the Borrower authorizing the Proposed Acquisition and the related transactions, certified by the Secretary or Assistant Secretary of Borrower;
(iii) pro forma historical financial statements as of the end of the most recently completed fiscal year of the Borrower and most recent interim fiscal quarter giving effect to the Administrative Agent; Proposed Acquisition;
(it being acknowledged and agreed that iv) a certificate substantially in the copy form of Exhibit D to the Credit Agreement prepared on a historical pro forma basis as of the date of the Audited Financial Model delivered Statements or, if later, as of the most recent date for which financial statements have been furnished pursuant to Section 6.01(b) of the Credit Agreement giving effect to the Proposed Acquisition, which certificate shall demonstrate that no Default or Event of Default shall have occurred and be continuing either immediately prior to or immediately after giving effect to the Proposed Acquisition and this Agreement;
(v) the Advance Notice (as defined in Paragraph 4 below), along with each of the documents required as a condition to the consent to the Proposed Acquisition described in Paragraph 2(a) hereof; and
(vi) such other documents, instruments, opinions, certifications, undertakings, further assurances and other matters as the Administrative Agent as shall reasonably request.
(b) Notwithstanding the 30-day time limit provided therein, and notwithstanding any limitation or waiver of December 16the requirements thereof that might otherwise be determined to result from the terms of this Agreement, 2021, the 2022 Operating Budget delivered but subject to the Administrative Agent as of December 16, 2021, the Construction Budget delivered exclusion set forth in Paragraph 2(b) hereof with respect to the Administrative Agent as Real Estate Subsidiary, substantially simultaneously with the consummation of December 16the Proposed Acquisition the Borrower shall have complied, 2021 and the Construction Schedule delivered shall have caused each of its Subsidiaries (determined after giving effect to the Administrative Agent as Proposed Acquisition) to have complied, fully with the requirements of December 16Section 6.14 of the Credit Agreement, 2021, including with respect to any new assets acquired in each case is in form the Proposed Acquisition.
(c) All fees and substance reasonably satisfactory expenses payable to the Administrative Agent and the Signatory Lenders).
Lenders (j) The Borrower has delivered to including the Administrative Agent an Officer’s Certificate fees and expenses of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory counsel to the Administrative Agent) estimated to date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Effectiveness; Conditions Precedent. This Agreement Amendment shall become effective on the first date on which each of when the following conditions shall have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been Administrative Agent’s receipt of this Amendment, duly executed on by the Signing Date by Borrower, the Administrative Agent, the Loan Parties and the Signatory Required Lenders (such execution not which counterparts may be delivered by facsimile, electronic email or other electronic means (including PDF) with originals to be unreasonably delayed or waivedfollow) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.;
(fb) The Administrative Agent the Borrower shall have received prepaid not less than $5,000,000 of the Amended and Restated Control, Operations and Maintenance Agreement, dated principal balance of the Closing Date Term Loans outstanding under the Credit Agreement as of July 29, 2021 (together with accrued interest thereon and other amounts payable in connection therewith as provided in Section 2.05(a) of the Eighth Amendment Effective Date, executed by Project Company Credit Agreement) and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to instructed the Administrative Agent to account for apply such prepayment to the issuance principal installments of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.Closing Date Term Loans in inverse order of maturity; and
(ic) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, ’s receipt of the work fee in each case the amount of $2,000,000 earned in form and substance reasonably satisfactory connection with Amendment No. 3 to the Administrative Agent; Credit Agreement, to be paid to each Lender that consented to Amendment No. 3 on a pro rata basis in proportion to the Total Credit Exposure (at the time of execution of Amendment No. 3) of such Lender (or its assignees) to the aggregate Total Credit Exposure (at the time of execution of Amendment No. 3) of all such consenting Lenders (or their assignees), it being acknowledged understood and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an OfficerBorrower’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body payment of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied work fee in accordance with this Amendment shall satisfy in full the terms hereof, (ii) after giving effect Borrower’s corresponding payment obligations with respect thereto arising under the fee letter executed in connection with Amendment No. 3 to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateCredit Agreement.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness; Conditions Precedent. This Agreement Consent shall become only be effective upon the satisfaction on the first date on which or before August 30, 2020 of each of the following conditions have been satisfied or waived precedent (such datethe date of satisfaction, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one following documents or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be instruments in form and substance reasonably satisfactory acceptable to Agent executed counterparts of this Consent executed by all Borrowers, all Guarantors (if any), Agent and the Administrative Agent.Required Lenders;
(fb) The Administrative Agent 2024 Secured Notes Indenture shall have received the Amended been executed and Restated Controldelivered by all parties thereto, Operations and Maintenance Agreement, dated as an amount not to exceed $200,000,000 aggregate principal amount of the Eighth Amendment Effective Date2024 Secured Notes shall have been issued pursuant thereto, executed by Project Company and GCE Operatingexchanged for, which an equal principal amount of 2022 Unsecured Notes;
(c) MLP Parent shall be have designated the 2024 Secured Notes as Parity Lien Debt in accordance with the terms of the Collateral Trust Agreement and the Parity Lien Documents (as defined in the form attached hereto as Exhibit G.Collateral Trust Agreement);
(gd) The Administrative Agent shall have received a payoff letter relating to the intercompany loantrue, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct 2024 Secured Notes Indenture, the 2024 Secured Notes and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or any other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.2024 Secured Notes Documents;
(ke) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true Section 3(a) and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respectsSection 3(b) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were shall be true and correct as of such earlier date) the Effective Date and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default Agent shall have received a certificate or Event certificates executed by a Senior Officer of Default has occurred and is continuing each Borrower or MLP General Partner as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to Agent, stating that such conditions and the Administrative conditions in the immediately preceding clause (c) are satisfied;
(f) Agent shall be reasonably satisfied that the Notes Exchange will not result in the inclusion of any Collateral as Hedge Agreement Collateral;
(g) Borrowers shall have paid to Agent, for the benefit of each Lender (including Bank of America) that consents to this Consent, a consent fee (the “Consent Fee”) in an aggregate amount equal to 0.0875% of the Commitments of each such Lender outstanding on the Effective Date, which Consent Fee Borrowers agree shall be deemed fully earned and payable on the Effective Date;
(h) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (including the reasonable fees and expenses of counsel for Agent) to the extent that the Borrower has received an invoice therefor at least two Business Days prior to the Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced); and
(i) Agent shall have received such documentation and other information as has been reasonably requested by Agent in connection with this Consent and the transactions contemplated hereby. Without limiting the generality of the provisions of Section 11.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Consent 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 Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Effectiveness; Conditions Precedent. This Agreement shall become effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Fourth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each hereof which, when taken together, bear the signatures of each of the other parties hereto.
(b) The Administrative Agent shall have received duly executed copies of each of the following documents: (i) CTCI EPC Agreement, (ii) CTCI Parent Guaranty, (iii) that certain Consent and Agreement, dated as of the date hereof, by and among CTCI, the Project Company and Orion Energy TP Agent, LLC, in its capacity as the collateral agent and (iv) that certain Consent and Agreement, dated as of the date hereof, by and among CTCI Guarantor, the Project Company and Orion Energy TP Agent, LLC, in its capacity as the collateral agent, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received duly executed copies of the ARB EPC Termination Documentation, in form and substance satisfactory the Administrative Agent in its sole discretion.
(d) Borrower has arranged for payment on the Eighth Fourth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after After giving effect to the waivers set forth in the Waiver and the amendments set forth hereinin this Agreement, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are shall be true and correct in all respects) on and as of the Eighth Fourth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
(f) and (iii) after After giving effect to the waivers set forth in the Waiver and the amendments set forth hereinin this Agreement, no Default or Event of Default has shall have occurred and is be continuing as of the Eighth Fourth Amendment Effective Date.
(lg) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender The Administrative Agent shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Datean updated Construction Budget, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and which shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. This Amendment, and the amendments to the Credit Agreement provided in Section 1 hereof, shall become effective on the first date Business Day on which each of the following conditions have been precedent are satisfied or waived (such date, the “Eighth Amendment Effective Date”):
): (ai) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each whichreceived, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent., each of the following: (A) at least one fully executed copy of this Amendment, duly executed by each of the Loan Parties, the Administrative Agent and the Required Lenders;
(f1) The upon the reasonable request of any Lender made at least 3 days prior to the Amendment Effective Date, each Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least two days prior to the Amendment Effective Date and (2) at least two days prior to the Amendment Effective Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Company shall deliver to each requesting Lender a Beneficial Ownership Certification in relation to such Borrower; (ii) on or before the Amendment Effective Date, to the Person to whom such fees are owing, any fees required to be paid pursuant to this Amendment or the fee letter dated as of the date hereof among the Company, the Facility Guarantor, Bank of America and BofA Securities, Inc.; and (iii) unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to the Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions in Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating notice from such Lender prior to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party date hereof specifying its objection thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Discovery, Inc.)
Effectiveness; Conditions Precedent. This Agreement (a) The consent provided in Section 1(b) of this Consent and Amendment and the amendments provided in Section 2 of this Consent and Amendment shall become be effective on the first date on which upon satisfaction of each of the following conditions have been satisfied or waived precedent (such datethe date of satisfaction, the “Eighth Amendment First Effective Date”):
(ai) This Agreement Agent’s receipt of executed counterparts of this Consent and Amendment executed by all Borrowers, all Guarantors (if any), Agent and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.Supermajority Lenders;
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) Both immediately prior and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) immediately after giving effect to the waivers set forth consent provided in the Waiver Section 1(b) of this Consent and Amendment and the amendments set forth herein, the representations provided in Section 2 of this Consent and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth hereinAmendment, no Default or Event of Default has occurred exists;
(iii) The representations and is continuing warranties in Section 4(a) shall be true and correct as of the Eighth Amendment First Effective Date and Agent shall have received a certificate executed by a Senior Officer of each Borrower or MLP General Partner as of the First Effective Date, in form and substance satisfactory to Agent, stating that such condition is satisfied; and
(iv) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (including the reasonable fees and expenses of counsel for Agent) to the extent that the Borrower Agent has received an invoice therefor at least two Business Days prior to the First Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced).
(lb) As consideration for The consent provided in Section 1(a) of this Consent and Amendment shall be effective only upon the Sixth Amendment satisfaction on or before November 30, 2021 of each of the following conditions precedent (the date of satisfaction, the “Second Effective Date”):
(i) The Refinery Asset Borrowing Base Component shall have been permanently reduced to $0 (the “Refinery Borrowing Base Reduction”) and the Forbearance immediately before and Conditional Waiver Agreement and Consent No. 5after giving effect to such Refinery Borrowing Base Reduction, no Overadvance shall exist;
(ii) Agent shall have received an updated Borrowing Base Certificate prepared as of the Eighth Amendment Effective Dateclose of business of (A) if the Hydrocracker Disposition is consummated prior to November 15, 2021, September 2021 and (B) otherwise, October 2021, in each Lender shall have received case, after giving pro forma effect to the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective DateRefinery Borrowing Base Reduction, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably acceptable to Agent;
(i) At least 75% of the consideration paid to the Borrowers in connection with the Hydrocracker Disposition shall be in cash or Cash Equivalents, such payment shall be effected concurrently therewith and shall be in an amount not less than the fair market value of the Hydrocracker and to the extent that such Hydrocracker Disposition results in the Facility Usage exceeding the Aggregate Borrowing Base after giving effect thereto, Borrowers shall, prior to or concurrently with such consummation, repay the Obligations in an amount sufficient to eliminate such excess and (ii) Obligors agree to apply all Net Cash Proceeds of such Hydrocracker Disposition in compliance with clause (vi) of the proviso to Section 9.2.5 of the Credit Agreement;
(iv) MLP Parent shall have (i) received certified copies of the articles of incorporation and bylaws of Montana Holdings and Montana Renewables and (ii) designated Montana Holdings as an Unrestricted Subsidiary in accordance with the terms and conditions set forth in the Credit Agreement and as an Unrestricted Subsidiary (as defined under, and in accordance with the terms and conditions set forth in, any Senior Notes Indenture, the Senior Secured Notes Indenture and any Refinancing Indebtedness of any of the foregoing);
(v) (i) Availability (A) at all times during the 30-day period preceding the Hydrocracker Disposition and (B) on the date of such Hydrocracker Disposition and after giving effect thereto (including any reduction in the Aggregate Borrowing Base to result therefrom), in each case, on a Pro Forma Basis, shall be greater than or equal to the sum of (x) 15% of the Borrowing Base then in effect plus (y) the amount of any FILO Loans outstanding on a Pro Forma Basis and (ii) if Availability as referred to in (i)(A) or (B) above is less than the sum of (x) 22.5% of the Borrowing Base then in effect, plus (y) the amount of any FILO Loans outstanding on a Pro Forma Basis (which Availability under clause (i)(A) above shall be, for purposes of this clause (B) only, calculated on an average basis for such 30-day period), Borrower Agent shall have delivered to Agent a certificate demonstrating, based on adjustments made in good faith using reasonable assumptions, that, upon and after giving effect to such Hydrocracker Disposition, the Fixed Charge Coverage Ratio on a Pro Forma Basis would be at least 1.0 to 1.0;
(vi) No Default or Event of Default exists at the time of the Hydrocracker Disposition or will arise as a result thereof;
(vii) The representations and warranties in Section 4(a) and Section 4(b) shall be true and correct as of the Second Effective Date and Agent shall have received a certificate or certificates executed by a Senior Officer of each Borrower or MLP General Partner as of the Second Effective Date, in form and substance satisfactory to Agent, stating that such conditions and the Administrative conditions in the immediately preceding clauses (b)(i), (b)(ii), (b)(iii), (b)(iv), (b)(v) and (b)(vi) are satisfied;
(viii) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (including the reasonable fees and expenses of counsel for Agent) to the extent that the Borrower Agent has received an invoice therefor at least two Business Days prior to the Second Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced); and
(ix) Agent shall have received such documentation and other information as has been reasonably requested by Agent in connection with this Consent and Amendment and the transactions contemplated hereby. Without limiting the generality of the provisions of Section 11.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Consent and Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender prior to the First Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Effectiveness; Conditions Precedent. This Agreement shall (a) The Issuer represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Sections 9.02 and 12.06 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 and 12.06 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture and to take all steps necessary to give effect to, and permit, the 2024 Proposed Amendments (as defined in the Consent Solicitation Statement). The Issuer, the Company, the Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which hereof upon execution by each of the following conditions have been satisfied or waived party hereto (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto).
(b) Borrower has arranged for payment The amendments set forth in Section 3 shall become operative on the Eighth Amendment Effective 2024 Indenture Consent Payment Date (as defined in the Consent Solicitation Statement) upon payment of the Existing 2024 Cabot Notes Consent Payment (as defined in the Consent Solicitation Statement) (the “Operative Date”). The Issuer shall provide prompt written notice to the Trustee that the Operative Date has occured. The Operative Date must occur prior to October 31, 2020. Notwithstanding any other provision of this Supplemental Indenture, if the Existing 2024 Cabot Notes Consent Payment has not been paid on or prior to such time, then (i) the Proposed Amendments shall not be given operative effect and the rights of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant Holders will continue as they were set forth in the Indenture immediately prior to the Financing DocumentsEffective Time, and (ii) the provisions of the Indenture will remain as set forth prior to the execution of this Supplemental Indenture and the Proposed Amendments will not become operative. If the Existing 2024 Cabot Notes Consent Payment has not been paid prior to 11:59 p.m., London time, on October 31, 2020, then the Issuer shall make an announcement via press release by sending a notice via the clearing systems and by posting a notice on the Luxembourg Stock Exchange website, in each case, stating that such event has not occurred and shall simultaneously provide a notice to the Trustee.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution Subject to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all provision of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of each of Borrower and Holdings dated as Counsel to the Trustee, payment of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy Existing 2024 Cabot Notes Consent Payment, receipt of the Organizational Documents for such Person; (ii) attached required consents from the other creditors under the Intercreditor Agreements to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth hereinin Section 4 and an enforceability opinion and capacity opinions relating to the ICA Amendment Agreement satisfactory to the Trustee, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as 2023 Proposed Amendments set forth in Section 2.
(m) As 4 will become effective and operative at the election of the Eighth Amendment Effective Date, Issuer at a future date determined by the Agent Reimbursement Letter shall have been amended Issuer in its sole discretion (including through the execution and restated, executed and delivered by each delivery of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative AgentICA Amendment Agreements).
Appears in 1 contract
Sources: First Supplemental Indenture (Encore Capital Group Inc)
Effectiveness; Conditions Precedent. This The effectiveness of this Amendment and the amendments to the Credit Agreement shall become effective on herein provided are subject to the first date on which each satisfaction of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):precedent:
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.
(b) Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one following documents or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.
(d) The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be instruments in form and substance reasonably satisfactory acceptable to the Administrative Agent.:
(fi) The Administrative Agent shall have received counterparts of this Amendment, duly executed by the Amended Borrower, each Approving Existing Lender and Restated Control, Operations and Maintenance Agreement, dated as each of the Eighth Amendment Effective Date, executed by Project Company and GCE OperatingNew Lenders, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loanconstitute Required Lenders, dated as of the Eighth Amendment Effective Date, executed and acknowledged by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.;
(hii) Schedule I (x) a true and complete copy of resolutions for the Borrower authorizing the amendments contemplated hereby, (y) a certification that each of the certificate of incorporation and by-laws of the Borrower has not been amended or otherwise modified since the effective date of the Credit Agreement or, in the alternative, attaching true and complete copies of all amendments and modifications thereto and (z) evidence of the good standing of the Borrower;
(iii) a certificate signed by a Senior Officer of the Borrower certifying as to the Holdco Borrower LLC Agreement has been updated representations and amended warranties set forth in Section 3(a);
(iv) a form reasonably satisfactory written opinion (addressed to the Administrative Agent to account and the Lenders and dated the date hereof) of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
Borrower, and a written opinion (i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule addressed to the Administrative AgentAgent and the Lenders and dated the date hereof) of the general counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(it being acknowledged v) originals or copies (which may include telecopy or electronic mail submission of a signed promissory note) of promissory notes in favor of each New Lender, substantially in the form of Exhibit D to the Credit Agreement.
(b) the Master Assignment referenced herein (a true and agreed that the complete copy of the Financial Model delivered to which shall have been received by the Administrative Agent as Agent) shall have become effective substantially simultaneously with the effectiveness of December 16, 2021, the 2022 Operating Budget delivered to this Amendment; and
(c) unless waived by the Administrative Agent as Agent, all accrued fees and expenses of December 16the Arrangers, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered Lenders required to be paid in connection with the Credit Agreement on or prior to the Administrative Agent an Officer’s Certificate closing of each of Borrower and Holdings dated the Amendment shall have been paid. This Agreement shall become effective as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each hereof upon satisfaction of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, clauses (iia) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects through (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respectsc) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower above and the Administrative Agent, and Agent shall be in form and substance reasonably satisfactory give notice to the Administrative AgentBorrower of the effectiveness of this Amendment.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Cme Group Inc.)
Effectiveness; Conditions Precedent. This Agreement shall (a) The Issuer represents and warrants that each of the conditions precedent to the amendment and supplement of the Indenture (including such conditions pursuant to Section 7.02 and Section 9.02 of the Indenture) have been satisfied in all respects. Pursuant to Section 9.02 of the Indenture, the Holders of at least a majority in principal amount of the outstanding Notes voting as a single class have authorized and directed the Trustee to execute this Supplemental Indenture. The Issuer, the Company, the Guarantors and the Trustee are on this date executing this Supplemental Indenture which will become effective on the first date on which hereof upon execution by each of the following conditions have been satisfied or waived party hereto (such date, the “Eighth Amendment Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto).
(b) Borrower has arranged for payment The amendments set forth in Section 3 shall become operative on the Eighth Amendment Effective Consent Payment Date (as defined in the Consent Solicitation Statement) upon payment of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing DocumentsConsent Payment (as defined in the Consent Solicitation Statement) (the “Operative Date”).
(c) substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies Subject to payment of the Pledgor shall have deposited into Consent Payment (as defined in the (AConsent Solicitation Statement) Construction Account, as a common equity contribution and receipt of the required consents from the other creditors under the Intercreditor Agreements to the Pledgor amendments set forth in Section 4, the Proposed Amendments set forth in Section 4 will become effective and operative at the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all election of the then-outstanding Bridge Loans (plus any premium Issuer at a future date determined by the Issuer in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminatedits sole discretion.
(d) The HoldCo Lenders shall have executed and delivered Notwithstanding anything to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.
(e) The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.
(g) The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.
(i) As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).
(j) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.
(k) The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that each of the conditions set forth contrary in this Section 4 have been satisfied in accordance with the terms hereofSupplemental Indenture, (ii) after giving effect to the waivers set forth in the Waiver and all of the amendments set forth herein, in Sections 3 and 4 hereof will cease to be operative if the representations Issuer or an agent on its behalf does not pay the Consent Payment (as defined in the Consent Solicitation Statement) to Euroclear and warranties of each Clearstream on behalf of the Loan Parties set forth Holders on the Consent Payment Date (as defined in the Financing Documents are true and correct in all material respects (except where already qualified Consent Solicitation Statement) as contemplated by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective DateConsent Solicitation Statement.
(l) As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.
(m) As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Third Supplemental Indenture (Encore Capital Group Inc)